IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100007328 


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) for the period ending 31 August 1987 to show he retired as a first sergeant (1SG)/E-8.

2.  The applicant states:

* When he retired he was the Chief of Investigative Support (CIS) for the Fort Stewart District CID [Criminal Investigation Command] office
* As the CIS he was also the unit 1SG
* His position at the Fort Stewart District CID office encompassed two titles, the CIS when he was performing criminal investigation duties/oversight and first sergeant as the senior enlisted Soldier responsible for the health, welfare, training, and conduct and discipline of his Soldiers
* Because most of the time he was in civilian clothing he never concerned himself with rank as his Soldiers knew who he was
* When he retired he didn't make an issue of the difference between master sergeant (MSG) and first sergeant as he was moving to an area where the rank on his identification card was of little consequence
* He was wrong and would like to correct this if he can
* When he retired his DD Form 214 stated he was a MSG

3.  The applicant provides a copy of his DD Form 214 for the period ending 
31 August 1987. 


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.  Having completed 3 years, 11 months, and 28 days of active service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 2 October 1970.  He remained on active duty through continuous reenlistments.  He was promoted to the rank/grade of MSG/E-8 on 20 July 1985.  The applicant's DA Form 2339 (Application for Voluntary Retirement), dated 16 March 1987, shows in item 6 (Highest Grade Served on Active Duty and Branch of Service) the entry "MSG/E-8 US Army."

3.  Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart Orders Number 55-27, dated 23 March 1987, released the applicant from active duty effective 31 August 1987 and, on the date following, placed him on the retired list and transferred him to the U.S. Army Reserve (USAR) Control Group (Retired) in the rank of MSG.

4.  On 31 August 1987, the applicant retired in the rank of MSG.

5.  The applicant's DD Form 214 for the period ending 31 August 1987 shows his rank as MSG.

6.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to MSG with a date of rank of 20 July 1985.  This record does not show completion of a "First Sergeant Course" or award of SQI "M," which is awarded to Soldiers in the rank/grade of sergeant first class (SFC)/E-7 or Soldiers in grade 
E-8 who successfully complete the Department of the Army First Sergeant Course.  It does show his duty military occupational specialty code (MOSC) was 95D5M during the period 1 December 1986 through 31 August 1987 with CID at Fort Stewart, GA.

7.  The applicant's DA Form 2166-6 (Enlisted Evaluation Report) covering the periods December 1985 through November 1986 and December 1986 through March 1987 show his rank as MSG and his duty MOSC as 95D5M with duty title as Chief, Investigative Support.

8.  There is no evidence of record which shows the applicant was placed in an authorized first sergeant position or laterally appointed to 1SG.

9.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policy and procedures for career management of Army personnel.

* paragraph 2-41 (General) stated lateral appointments will be announced in orders
* paragraph 2-42 (Lateral appointments of noncommissioned officer (NCO)) stated NCOs may be laterally appointed from one NCO grade to another within the same pay grade when change of duty requires (change of duty for E-8 requires lateral appointment to or from master sergeant or first sergeant)
* paragraph 3-9 (First sergeant positions) states Soldiers occupying first sergeant positions must have SQI "M."

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 12 (Retirement for Length of Service), paragraph 12-17 (Grade title on retired list of former first sergeants) in effect at the time, states NCOs holding the grade of MSG/E-8 at retirement whose records show successful service as 1SG/E-8, will be placed on the retired list in the grade title "first sergeant."  The following are the only criteria for such placement on the retired list:

   a.  The Soldier must be serving in and retiring in grade E8;

   b.  The Soldier must possess SQI "M"; and

   c.  The Soldier must have served as first sergeant in pay grade E-8.  No minimum time period is specified.

11.  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 establishes standardized policy for the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or 


discharge.  It also establishes standardized policy for the preparation of the
DD Form 214.  It states, for item 4a (Grade, Rate or Rank), enter the active duty rank at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends when he retired he was the CIS for the Fort Stewart District CID office and as the CIS he was also the unit 1SG.

2.  All official records in the applicant's Official Military Personnel File (OMPF) show the rank of MSG.  The documents he completed in preparation for his length of service retirement all indicated his highest rank on active duty as MSG.

3.  Although his DA Form 2-1 indicates his duty MOSC was 95D5M from 
1 December 1986 through 31 August 1987, there is no evidence of record which shows he attended and completed the First Sergeant Course, was awarded SQI "M," or occupied a valid first sergeant position.  There are also no lateral appointment orders of record.

4.  In order to be placed on the retired list as a 1SG, the applicant would have had to have completed the prescribed Department of the Army First Sergeant Course, have been awarded SQI "M," and have served in an authorized first sergeant position.  However, his records do not show and he did not provide any evidence to show he attained these criteria.  Therefore, he was appropriately retired from active duty in the rank of MSG and placed on the retired list on 1 September 1987 in the same rank.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100007328



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100007328



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1