BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100007154 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect that he was retired in the rank of First Sergeant (1SG).

2.  The applicant states that he believes an error occurred at the time of his retirement and his DD Form 214 was prepared to reflect his rank/grade as master sergeant (MSG)/E-8 instead of 1SG/E-8, which was the highest grade he achieved while on active duty.

3.  The applicant provides a letter explaining his application, a copy of his previous application to the Board, a copy of orders appointing him to the rank of 1SG, and a copy of his DD Form 214.

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 enlisted in the Regular Army on 2 January 1973 for a period of 3 years and training in the law enforcement career management field.  He successfully completed his training and remained on active duty through a series of continuous reenlistments. 

3.  On 22 January 1991, he assumed the duty position as the 1SG of Company A, U.S. Army Garrison, Fort Sam Houston, TX.  He was promoted to the rank/grade of MSG/E-8 on 1 February 1991.  On the same day, Orders 27-76, issued by Headquarters, Fifth U.S. Army, Fort Sam Houston, laterally appointed him to the rank of 1SG.

4.  On 18 October 1991, he relinquished his 1SG duty position and assumed the principal duty as the operations/intelligence noncommissioned officer of Joint Task Force Six, Fort Sam Houston, as evidenced by an entry in Item 35 (Current and Previous Assignments) of his DA Form 2-1 (Personnel Qualification Record).  On 14 November 1991, Orders 231-16, issued by Headquarters, Fifth U.S. Army, Fort Sam Houston, laterally appointing him back to the rank of MSG, effective
18 October 1991.

5.  On 31 January 1993, he was retired by reason of length of service in the rank/grade of MSG/E-8.  He was subsequently transferred to the U.S. Army Reserve (USAR) Control Group (Retired) and placed on the Retired List in the rank/grade of 1SG/E-8, effective 1 February 1993.  He had served 20 years and 29 days of active service.

6.  The applicant’s retirement orders show that he was released from active duty in the rank of MSG on 31 January 1993 and on the date following, he was placed on the Retired List in the rank of 1SG.

7.  The applicant’s DD Form 214 shows that he was retired on 31 January 1993 in the rank of MSG E-8.

8.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will contain only that information that exist at the time of release or discharge from active duty.  Information/events that occur subsequent to the date the DD Form 214 will not be retroactively entered on the DD Form 214.  The DD 


214 acts as a snapshot in time to reflect information that was in effect at the time. It states that for item 4a, enter the active duty grade of rank at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was serving in the rank/grade of MSG/E-8 at the time he was released from active duty on 31 January 1993 and his DD Form 214 correctly reflects that information.

2.  In accordance with his retirement orders, he was transferred to the Retired List in the rank/grade of 1SG/E-8, effective 1 February 1993.

3.  Accordingly, the applicant's DD Form 214 correctly reflects his rank at the time of his release from active duty for retirement as MSG and his retirement orders properly place him on the Retired List in the rank of 1SG.  Had he remained in an authorized 1SG duty position at the time of his retirement his DD Form 214 as well as his retirement orders would have reflected his rank as 1SG.  Therefore, in the absence of evidence to show otherwise, there is no basis to change his DD Form 214 to show his rank as 1SG.

4.  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 that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x___  ___x_____  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________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)                                         AR20100007154



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         A