IN THE CASE OF:
BOARD DATE: 16 February 2011
DOCKET NUMBER: AR20100021113
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 his retirement rank be changed to master sergeant instead of sergeant first class on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 1998.
2. The applicant states he was promoted to master sergeant/E-8 effective 1 October 1997.
3. The applicant provides:
* promotion orders
* 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. Having prior active service and inactive service, the applicant enlisted in Regular Army on 15 July 1981. He remained on active duty through continuous reenlistments. He was promoted to sergeant first class effective 1 January 1989.
3. The applicant provided orders, dated 11 September 1997, which show he was promoted to master sergeant effective 1 October 1997. The orders state the promotion is not valid and it will be revoked if he is not in a promotable status on the effective date of promotion and that Soldiers who are promoted automatically incur a 2-year service obligation prior to voluntary nondisability retirement.
4. The applicant's DD Form 214 for the period ending 31 January 1998 shows he was retired on 31 January 1998. Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) of his DD Form 214 show his rank as sergeant first class/E-7.
5. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the policies and procedures for promotion and reduction of Army enlisted personnel. It states Soldiers promoted to master sergeant will incur a 2-year service requirement. It states Soldiers (specialist through master sergeant) are nonpromotable to a higher grade when a Soldier becomes ineligible to reenlist based on approved retirement.
DISCUSSION AND CONCLUSIONS:
1. The promotion orders provided by the applicant were carefully considered.
2. Since his promotion orders are dated so close to his retirement date, it appears he applied for retirement before the promotion orders were issued.
3. His promotion to master sergeant was contingent upon being in a promotable status and the promotion orders indicate the promotion is not valid and would be revoked if he was not in a promotable status on the effective date of promotion.
4. Since the governing regulation states an approved retirement places the Soldier in a nonpromotable status, it appears his promotion orders were subsequently revoked for that reason.
5. Based on the foregoing, the promotion orders are not sufficient as a basis for amending the applicant's rank to master sergeant on his DD Form 214 for the period ending 31 January 1998.
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 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) AR20100021113
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ABCMR Record of Proceedings (cont) AR20100021113
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