IN THE CASE OF:	  

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090018332 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests item 4a (Grade Rate or Rank) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his rank title as first sergeant (1SG) vice master sergeant (MSG).

2.  The applicant states he is requesting correction to his DD Form 214 to show his retirement rank as 1SG as reflected on his retirement orders.

3.  The applicant provides his DD Form 214 and retirement orders in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he initially enlisted in the Regular on 1 February 1974 and continuously served through 31 August 1987 until he was retired.  

3.  United States Army Military Personnel Center (MILPERCEN) Orders Number 145-9, dated 1 October 1982, promoted the applicant to MSG/E-8, effective
1 November 1982, and with a date of rank (DOR) of 2 October 1982.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows the following in the items indicated below:  

	a.  Item 17 (Civilian Education and Military Schools) shows he completed the 1SG course in 1983;

	b.  Item 18 (Appointments and Reductions) shows he was promoted to MSG/E-8 on 2 October 1982 and he was laterally appointed to 1SG on 
20 February 1984; and 

	c.  Item 35 (Record of Assignments) shows he was served in a 1SG duty position with Headquarters and Headquarters Company, 3rd Battalion, 17th Infantry Regiment, 7th Infantry Division, from 23 March 1984 through 31 January 1986.  Item 35 also shows he served in a MSG duty position as a drill instructor from 18 February 1986 through 31 August 1987.

5.  The applicant's record contains a DA Form 2339 (Application for Voluntary Retirement), dated 31 October 1986.  This document shows he held the permanent grade of MSG/E-8, and that the highest rank he served in while on active duty was 1SG.  

6.  A DA Form 3713 (Data for Retired Pay), dated 17 June 1987, prepared on the applicant during his retirement processing, shows his retired grade/retired pay grade as MSG and the highest grade attained while on active duty was 1SG. 

7.  Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, Orders Number 233-36, dated 11 December 1986, directed the applicant’s separation for retirement on 31 August 1987, and his placement on the Retired List on 1 September 1987, in the grade of 1SG/E-8.  The standard name line on these orders lists the applicant's current rank as MSG.  

8.  Army Regulation 635-200 prescribes the policy and procedures for the separation of enlisted personnel.  Paragraph 12-17 (Grade Title on Retired List of former 1SGs) of the current enlisted separations regulation stipulates that noncommissioned officers holding the grade of MSG at retirement, whose records show successful service as a 1SG sergeant, will be placed on the Retired List in the grade title 1SG.  The only criteria for such placement on the Retired List is that the Soldier must be serving in and retiring in the grade of MSG, must possess the SQI M and must have served as a 1SG in the grade of MSG/E-8.

9.  Army Regulation 600-200 contains the management policy for Army enlisted Soldiers.  At the time, permanent promotions to E-8 were all made in the rank of MSG, and the rank of 1SG was accomplished through lateral appointment.  Paragraph 2-42, in effect at the time, was the authority for the lateral appointment of noncommissioned officers.  It stated, in pertinent part, that a change of duty for members in the pay grade E-8 required a lateral appointment to 1SG.  

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  It further states the entry in item 4a will reflect the active duty grade or rank held on the date of separation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his DD Form 214 be corrected to reflect his rank as 1SG vice MSG was carefully considered.  However, the evidence is not sufficient to support this claim.  

2.  By regulation the rank and pay grade held by the member on the date of separation will be entered on the DD Form 214.  

3.  The evidence of record confirms although the applicant successfully served as a 1SG and was placed on the Retired List in that rank title, he was actually serving as a MSG at the time of his separation for retirement, as evidenced by item 35 of his DA Form 2-1, entries on the DA Form 3713, DA Form 2339 prepared during his retirement processing, and the standard name line of his retirement orders.  

4.  In view of the facts of this case, it appears the applicant was properly placed on the Retired List in the rank and title of 1SG based on successful service as a 1SG and his DD Form 214 accurately reflects he was serving as a MSG on the date of his separation for retirement.  

5.  Therefore, absent any evidence of error or injustice in the entry in item 4a of the DD Form 214, there is an insufficient evidentiary basis to support granting the requested relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090018332



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018332



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1