IN THE CASE OF:	  

		BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100020072 


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 records to show he was laterally appointed/promoted to command sergeant major (CSM)/pay grade E-9.

2.  The applicant states he served in the artillery branch as a sergeant major (SGM)/pay grade E-9.

   a.  While assigned to the 4th Battalion, 4th Brigade [Korea], he received a compassionate reassignment and returned to the United States.

   b.  He retired from the U.S. Army in August 1968 and all of the SGMs in the artillery branch that he knows were battalion CSMs.

   c.  He was denied the CSM designation at his last duty assignment and he would like to see his rank corrected to CSM.

3.  The applicant provides a copy of his Army Commendation Medal citation for meritorious service during the period 31 May 1966 through 31 May 1967 as First Sergeant of Battery C and Battalion Sergeant Major, 4th Battalion, 76th Artillery, 7th Infantry Division.  The citation shows his rank was "Sergeant Major E-9."

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 had prior enlisted active duty service in the U.S. Marine Corps from 26 April 1946 through 12 June 1947 and in the U.S. Army from 7 June 1949 through 2 December 1952.

3.  The applicant enlisted and reentered active duty in the Regular Army on
15 January 1953.

4.  Headquarters, 7th Infantry Division, Special Orders Number 327, dated
23 November 1966, promoted the applicant to the temporary (T) grade of SGM (E-9) in primary military occupational specialty (MOS) 13Z5O (Field Artillery Senior Sergeant).

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 2 (Grade) - "SGM E9";

   b.  item 3 (Date of Rank) - "23 Nov 66" (i.e., 23 November 1966);
   
   c.  item 22 (Military Occupational Specialties [MOS]) he was awarded primary MOS 13Z5O and secondary MOS 15E5O (Pershing Missile Crewman) on
23 November 1966;

   d.  item 33 (Appointments and Reductions) he was promoted to SGM (E-9) (T) with a date of rank of 23 November 1966 per Headquarters, 7th Infantry Division, Special Orders Number 327 [1966]; and

   e.  item 38 (Record of Assignments) that he served in:

	    (1)  duty MOS 13Z5O as First Sergeant, C Battery, 4th Battalion,
76th Artillery, 7th Infantry Division [Korea], from 31 May to 1 December 1966;

	    (2) duty MOS 13Z5O as Operations Sergeant, Headquarters and Headquarters Battery (HHB), 7th Division Artillery, 7th Infantry Division [Korea], from 2 to 14 December 1966;
	    (3)  duty MOS 13Z5O as Sergeant Major, HHB, 1st Battalion, 31st Artillery, 7th Infantry Division [Korea], from 15 December 1966 to 6 February 1967;

       (4)  duty MOS 13Z5O as Sergeant Major, HHB, 4th Battalion, 76th Artillery, 7th Infantry Division [Korea], from 7 February to 13 July 1967;

       (5) duty MOS 11G5O as Battalion Sergeant Major, Headquarters and Company A, 4th Battalion, 1st Training Brigade, U.S. Army Training Center and Infantry, Fort Benning, GA, from 14 July to 15 October 1967;

       (6)  duty MOS 13Z5O as Operations Sergeant (Operations, Training, and Intelligence), U.S. Army Garrison (USAG), Fort Sheridan, IL, from 16 October 1967 to 7 May 1968; and

       (7)  duty MOS 03Z5O as Recreation Supervisor (Special Services), USAG, Fort Sheridan, IL, from 8 May to 31 August 1968 (i.e., the date he retired from active duty).

6.  A DA Form 2339 (Application for Voluntary Retirement), dated 2 May 1968, shows the applicant requested retirement from active duty on 31 December 1968.  Item 11 (Highest Grade Served on Active Duty) shows the entry "SGM E9."  The applicant placed his signature on this document.

7.  A DA Form 2496 (Disposition Form), dated 29 May 1968, Subject:  Request for Waiver, shows the applicant acknowledged he had committed to serve two years of active military service prior to retirement as a SGM E-9.  It shows he requested a waiver be granted for 84 days to enable him to retire 1 September 1968 instead of 1 January 1969.  The applicant's signature block shows his rank and grade as "SGM E-9."  The applicant placed his signature on the request.

8.  An AGPZ Form 39 (Extract of Special Orders - Retirement or Retirement and Advancement in Grade, Enlisted Personnel) shows the applicant's release from active duty and placement on the retired list was promulgated by Headquarters, Department of the Army, Washington, DC, Special Orders Number 157, paragraph 275, dated 12 August 1968.  It also shows the applicant's rank and grade as "SGM (E-9)."

9.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably retired from active duty on
31 August 1968 and transferred to the U.S. Army Reserve Control Group (Retired).

   a.  At the time he had completed 6 years, 2 months, and 12 days of net active service this period; 14 years and 16 days of other service; and 20 years,
2 months, and 28 days of total active service.

   b.  It also shows in:
   
* item 5a (Grade, Rate or Rank) - "SGM (T)"
* item 5b (Pay Grade) - "E-9"
* item 6 (Date of Rank) - "23 Nov 66" (i.e., 23 November 1966)

   c.  Item 32 (Signature of Person Being Transferred or Discharged) shows the applicant placed his signature on the document.

10.  The applicant's military personnel records do not show that he served in a CSM duty position, that he was awarded MOS 00Z5O, or that he was laterally appointed/promoted to CSM (E-9).

11.  Headquarters, Department of the Army (HQDA) Circular 611-31, dated
8 January 1968, and HQDA Circular 611-36, dated 15 April 1968, announced the results of the first two increments of SGMs nominated by their commanders for entry into the CSM Program.  Commanders were responsible for notifying individuals selected for the CSM Program and awarding them MOS 00Z5O by unit special order.  Individuals selected were subject to worldwide assignment.

12.  Title 10, U.S. Code, section 3961, provides the legal authority for the retired grade of Army personnel on the Retired List.  It states, in pertinent part, 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.

13.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was laterally appointed/promoted to CSM and retired as a CSM (E-9) because he satisfactorily served as a battalion sergeant major.

2.  The evidence of record shows the applicant was promoted to the temporary grade of SGM (E-9) on 23 November 1966.

3.  There is no evidence of record, and the applicant provides insufficient evidence, to support his contention he was laterally appointed/promoted to CSM.

4.  Records show the applicant served in duty MOS 11G5O as Battalion Sergeant Major, Headquarters and Company A, 4th Battalion, 1st Training Brigade, U.S. Army Training Center and Infantry, Fort Benning, GA, from 14 July to 15 October 1967.  However, there is no evidence the applicant was serving as the command sergeant major [emphasis added] of the battalion.

5.  There is no evidence the applicant was selected for entry into the CSM Program, that he was awarded MOS 00Z, or that he was laterally appointed/ promoted to CSM.

6.  Records show the applicant held the rank of SGM (Temporary)/pay grade E-9 when he was honorably retired from active duty on 31 August 1968.
 
7.  By regulation, the rank and pay grade held on the date of separation from active duty will be entered in item 5a and item 5b of the DD Form 214.  The evidence of record confirms the applicant held the rank and pay grade of SGM (E-9) on the date he retired from active duty.  Thus, there is no error with respect to the entries in item 5a and item 5b of his DD Form 214.  In addition, the retired grade in which the applicant was placed on the Retired List is correct.  Therefore, the applicant is not entitled to correction of his records in this case.

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)                                         AR20100020072



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100020072



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1