BOARD DATE:	  3 June 2010

		DOCKET NUMBER:  AR20090019927 


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 retired pay in the rank and grade of staff sergeant/E-6 (SSG/E-6) from 31 May 1982, the date of his retirement from active duty, through April 1997, the date he received an award from the Department of Veterans Affairs (VA).

2.  The applicant states the following:

	a.  He applied to the Army Board for Correction of Military Records (ABCMR) to correct his retired rank in 2003, due to his diagnosed Post Traumatic Stress Disorder (PTSD) condition.

	b.  The ABCMR generously and clearly increased his rank from specialist four/E-4 (SP4/E-4) to SSG.

	c.  The Defense Finance and Accounting Service (DFAS) has not paid him retired pay benefits in the rank of E-6 from the date of his retirement through the date of his 100 percent VA award.

	d.  DFAS previously informed the ABCMR that the applicant would not receive any benefits as a result of the change in rank.

	e.  Given he was receiving more pay from the VA than his Army retired pay, he agreed with DFAS's decision not to pay him in the higher rank of SSG.

	f.  He now believes he should receive the difference in pay from E-4 to E-6 from his 31 May 1982 date of retirement through 1 March 1995, the date he initially began to receive pay from the VA.

3.  The applicant provides no additional documents 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 military record shows he enlisted in the Regular Army (RA) on 29 May 1962.  He was served in military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted from private/E-1 (PV1/E-1) to the following ranks on the dates indicated:

* Private/E-2 (PV2/E-2) – 29 September 1962
* Private First Class/E-3 (PFC/E-3) – 10 April 1963
* SP4/E-4 – 26 October 1963
* Sergeant/E-5 (SGT/E-5) – 20 March 1965
* SSG/E-6 – 10 December 1966
* Sergeant First Class/E-7 (SFC/E-7) – 3 April 1974

4.  On 16 July 1979, while serving in the rank of SFC, a special court martial (SPCM) found the applicant guilty of violating the following Articles of the UCMJ:

* 2 specifications – Article 132, for preparing fraudulent claims against the United States on 10 October 1978 in the amount of $871.36, and on 8 November 1978, in the amount of $1,729.00
* 2 specifications – Article 107, for with the intent to deceive, sign official statements on 23 August and 19 October 1978, which he knew to be false
The resulting sentence, approved on 11 October 1979, was a reduction to the grade of E-6 (suspended for 6 months).

5.  On 9 June 1981, while serving in the rank of SFC, an SPCM found the applicant guilty of violating Article 91 of the UCMJ on six separate occasions for the following:

* disobeying a lawful order from his superior noncommissioned officer (NCO)
* being disrespectful in language to his superior NCO four separate times
* assaulting his superior NCO

The resulting sentence was a reduction to PFC/E-3.  On 27 July 1981, the court- martial convening authority approved the sentence and ordered it duly executed with the exception that so much of the sentence in excess of reduction to
SP4/E-4 was to be suspended for 6 months until 26 January 1982, if not sooner vacated.

6.  On 9 November 1981, the applicant's sentence to reduction to E-3 was set aside to allow him to retire in the rank and grade of SP4/E-4.

7.  On 31 May 1982, the applicant was honorably retired in the rank of SP4/E-4.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 20 years and 2 days of creditable service.

8.  On 23 February 1983, the ABCMR noted the applicant's two SPCM convictions and denied his prior request to restore his rank to SFC indicating he was appropriately retired in the rank of SP4.

9.  On 10 March 1995, the Army Ad Hoc Review Board determined the applicant did not satisfactorily serve on active duty in the rank of SFC and further determined he should be retained on the Retired List in the rank of SP4.

10.  On 7 October 2003, the ABCMR reconsidered the applicant's request to restore his rank to SFC.  The ABCMR determined the following:

	a.  The applicant's violations of the UCMJ diminished the level and quality of his service at the rank of SFC.

	b.  The applicant satisfactorily served in the ranks of SGT and SSG.

	c.  Recommended that the applicant's record be corrected by advancing him to the rank and pay grade of SSG/E-6, the effective date the ABCMR's proceedings were approved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should receive benefits covering the difference in pay between a SP4 and SSG from the date of his retirement to the date he received his VA award based upon the ABCMR's decision to advance him to the rank of SSG has been carefully considered.  There is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was twice convicted by SPCMs which ultimately led to his reduction to PFC.  His commander at the time set aside a portion the applicant's sentence and allowed him to retire in the rank of SP4.  Subsequently, the ABCMR and Ad Hoc Review Board both determined the applicant was retired in the appropriate rank of SP4/E-4 and denied his requests to restore his rank to SFC/E-7.

3.  The evidence of record also confirms the ABCMR reconsidered the applicant's request for restoration of his SFC rank and found no basis to restore his rank to that grade.  However, the ABCMR determined the applicant satisfactorily served in the rank of SSG and recommended his advancement to that rank effective on the date the ABCMR proceedings were approved.

4.  In view of the foregoing, the applicant was appropriately retired in the rank of SP4/E-4 on 31 May 1982 and he held that grade until the ABCMR approved his advancement to the rank of SSG/E-6 on 7 October 2003.  Accordingly, the applicant did not hold the rank of SSG during the period in question.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, the applicant's request should be denied.


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)                                         AR20090019927





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ABCMR Record of Proceedings (cont)                                         AR20090019927



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