BOARD DATE: 21 September 2010
DOCKET NUMBER: AR20100008860
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 that he be advanced on the Retired List to the rank and pay grade of sergeant first class/E-7.
2. The applicant states:
* during his time in the military, he served in military occupational specialty (MOS) 31W4O (telecommunications operation chief)
* he has been retired for 13 years
* he was told that after 10 years he could apply to have his retired rank changed from staff sergeant/E-6 to sergeant first class/E-7, since he served as an E-7 for 2 years
3. The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) for the period ending 11 June 1979 and his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 June 1996.
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. On 24 June 1976, the applicant enlisted in the Regular Army for 3 years in pay grade E-1. He completed training as a wire systems installer/operator and he remained on active duty through continuous reenlistments and extensions. He was promoted through the ranks, obtaining pay grade E-6 effective 1 September 1983.
3. On 4 April 1996, the applicant was furnished a DA Form 2166-7 (Noncommissioned Officer Evaluation Report) for the period July 1995 through February 1996 which shows he assumed the duties as a platoon sergeant, an
E-7 position, on several occasions and maintained exceptional control of 47 Soldiers. The report also shows he was serving in pay grade E-6 while he was performing the E-7 duties.
4. The applicant was honorably retired on 30 June 1996. His DD Form 214 for the period ending 30 June 1996 shows he retired in pay grade E-6. His DD Form 214 for this period also shows he held the following MOS's:
* 31L/31F2O (cable systems installer-maintainer), 10 years, 11 months
* 31W4O (telecommunications operations chief), 2 years, 2 months
* 00R3O (recruiter/retention noncommissioned officer) 2 years, 6 months
* 93Y3O (unit supply specialist) 1 year, 4 months
5. A review of the applicant's records does not show that orders were ever published promoting him to pay grade E-7.
6. Title 10, U.S. Code, section 3961, provides the legal authority for the retired grade of Army personnel on the Retired List. It states that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army who retires other than for physical disability retires in the regular or reserve grade that he or she holds on the date of his or her retirement.
7. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time the applicant retired from active duty, provided the authority for the separation of Soldiers from the Active Army. Paragraph 12-3 (General Provisions of Laws Governing Retirement) provided that retirement will be in the Regular or Reserve grade the member holds on the date of retirement in accordance with Title 10, U.S. Code, section 3961.
8. Title 10, U.S. Code, section 3964, provides the legal authority for advancement of warrant officers and enlisted members on the Retired List. It states that warrant officers and enlisted members of the Army are entitled, when their active service plus their service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.
9. Army Regulation 635-200, paragraph 12-6 (Advancement on the Retired List), provided that members with less than 30 years of active Federal service are considered for advancement on the Retired List if active duty plus service on the Retired List equals 30 years. They can be advanced to the grade equal to the highest grade (permanent or temporary) in which they served on active duty as determined by the Secretary of the Army.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been considered.
2. While the applicant was awarded an MOS and performed duties normally performed by individuals in pay grade E-7, there is no evidence in the available record and he has not submitted any evidence to show that orders were ever published promoting him to pay grade E-7.
3. His records show he was promoted to pay grade E-6 effective 1 September 1983 and that he held pay grade E-6 until he retired on 30 June 1996.
4. According to the applicable laws and regulation, he is not entitled to be advanced on the Retired List to pay grade E-7.
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) AR20100008860
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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