IN THE CASE OF:
BOARD DATE: 1 March 2011
DOCKET NUMBER: AR20100021162
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, in effect, advancement to master sergeant (MSG)/E-8 on the retired list under the provisions of Title 10, U.S. Code, Section 3964.
2. The applicant states his command did not inform him he was promoted to MSG/E-8. They wanted him to be discharged so they could give the MSG/E-8 position to another Soldier.
3. The applicant provides self-authored statements and documentation he states is his promotion packet, to which he has added documents the promotion board did not see.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. Following a period of service in the U.S. Navy, the applicant enlisted in the U.S. Army Reserve (USAR) on 23 May 1975. He entered active duty in the Active Guard Reserve (AGR) program on 30 September 1980, where he served until his honorable retirement for physical disability on 7 November 1990. He retired in the rank/grade of sergeant first class (SFC)/E-7.
3. The record is void of documentation showing he was considered or selected for promotion to MSG/E-8.
4. In a self-authored statement, he states at the time of his discharge he held the only position of MSG/E-8 in his unit. While his retirement for disability was being processed, his promotion came through to his commander, but it was kept a secret from him because the chain of command wanted to give the promotion to another Soldier. This did not happen. He also states the MSG/E-8 position he filled was withdrawn from the unit, removing any possibility of promotion.
5. Title 10, U.S. Code, section 3964 applies to warrant officers of the Army; enlisted members of the Regular Army; and reserve enlisted members of the Army who, at the time of retirement, are serving on active duty. It states each retired member of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he was selected for promotion to MSG/E-8 and was serving in a MSG/E-8 position. A careful review of the available records revealed no documentary evidence to support either statement. Nor is there any documentary evidence to support his statement that his chain of command withheld his promotion.
2. In the absence of evidence showing he was selected for promotion to
MSG/E-8 and served successfully in that rank and grade prior to his discharge for disability, there is no basis for granting the 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) AR20100021162
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100021162
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120005019
On 15 September 2010, in response to the applicants request for advancement on the Retired List, the Senior Legal Advisor, Army Review Boards Agency, informed the applicant that after a review of his Official Military Personnel File (OMPF) he had determined the applicant was not eligible for advancement on the Retired List by the Army Grade Determination Review Board under the provisions of 10 USC 3964 because his records did not reflect he was promoted to the grade of MSG/E-8. The...
ARMY | BCMR | CY2002 | 2002066462C070402
As a result, the Board recommended, in effect, that all required actions be accomplished in order for the applicant’s record to be corrected to show he remained on active duty through 31 August 1990, at which time he was honorably released from active duty for the purpose of voluntary retirement, and that on 1 September 1990, he was placed on the Retired List in the rank and pay grade of SFC/E-7. The Data for Retired Pay (DA Form 3713), dated 6 January 1993, prepared based on the Board’s 28...
ARMY | BCMR | CY2007 | 20070005930
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 September 2007 DOCKET NUMBER: AR20070005930 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Title 10, U. S. Code, section 3964 provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the retired list to the...
ARMY | BCMR | CY2007 | 20070006213C071029
The applicant requests that he be placed on the retired list in the rank and grade of Master Sergeant (MSG), E-8. Orders were issued on 29 February 1984 releasing the applicant from active duty effective 30 June 1984 and placing him on the retired list the date following in the rank of SFC. Title 10, U. S. Code, section 3961(b) states that, unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by section 3961(a) (which...
ARMY | BCMR | CY2001 | 2001059788C070421
By law and regulation, retirement will be in the Regular or Reserve grade the soldier holds on the date of retirement and advancement on the Retired List is only authorized when a member has held and satisfactorily served on active duty in a higher grade. In fact, the applicant’s own evidence, the LTG letter, confirms that the promotion recommendation submitted on him in 1968 was returned without action by the promotion authority. The Board also took special note of the fact that the...
ARMY | BCMR | CY2003 | 2003084181C070212
It states, in pertinent part, that retired soldiers are entitled to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty when their active service plus service on the retired list totals 30 years. By law, enlisted soldiers are retired in the rank and pay grade they hold on the date of their REFRAD, and retired soldiers are entitled to be advanced on the Retired List to the highest grade in which they satisfactorily served...
ARMY | BCMR | CY2001 | 2001065230C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. In addition, there are no orders or other documents contained in his Military Personnel Records Jacket (MPRJ) that give any indication that he was ever promoted to, held, or served in a higher pay grade while he was serving on active duty. The applicant submitted an application to the Army Grade Determination Board (AGRDB) requesting advancement on the Retired List to the...
ARMY | BCMR | CY2006 | 20060002888C070205
The applicant’s Military Personnel Records Jacket (MPRJ) is void of any orders or documents that indicate the applicant was ever selected for promotion to the pay grade E-8 by a properly constituted promotion selection board, or that he was promoted to a pay grade above E-7 by proper authority while serving on active duty. Further, by law, Soldiers are retired in the rank and pay grade they hold on the date of their REFRAD. It also shows he was never selected for promotion to the pay grade...
ARMY | BCMR | CY2013 | 20130006611
IN THE CASE OF: BOARD DATE: 28 January 2014 DOCKET NUMBER: AR20130006611 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides for the promotion and reduction of enlisted Soldiers. He was placed on the Retired List on 1 July 1992 in that grade.
ARMY | BCMR | CY2001 | 2001060100C070421
On 20 December 1989, a panel of this Board denied the applicant’s request to have his records corrected to show he was promoted to the pay grade of E-9, effective 1 March 1983. In effect, this decision was based on the fact that the Board disagreed with the ARPERSCOM position that there was no evidence to show the applicant was reduced to SFC/E-7 at the time he voluntarily entered active duty in that rank and pay grade. Further, there is no evidence contained in the record that shows that...