BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100025596 


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 advancement on the retired list to the rank/grade of master sergeant (MSG)/E-8).

2.  The applicant states, in effect, he met the requirement for advancement on the retired list because he served 20 years and 10 months of active duty, he has been retired for 10 years, and he has 30 years of combined active service and service on the retired list.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty); promotion and retirement orders; three general officer letters of congratulations; and a memorandum, dated 20 August 1997.

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 enlisted in the Regular Army on 16 June 1976.  He was promoted to sergeant first class (SFC)/E-7 on 1 November 1989.

3.  In response to the applicant's request for voluntary retirement, Headquarters, 8th Personnel Command [Korea] issued a memorandum approving his retirement for 1 August 1997.

4.  Orders Number 037-009, issued by the Camp Casey Transition Center, dated 6 February 1997, directed the applicant's release from active duty and placement on the retired list, effective 1 August 1997, in the rank of SFC.

5.  Orders Number 162-9, issued by the U.S. Total; Army Personnel Command, Alexandria, VA, dated 11 June 1997, announced the applicant's promotion to MSG effective 1 July 1997.  These orders state "Promotion is not valid and will be revoked if the Soldier concerned is not in a promotable status on the effective date of promotion.  Soldiers who are promoted automatically incurred a 2-year service obligation prior to voluntary non-disability retirement."

6.  On 31 July 1997, he retired after completing 21 years, 1 month, and 15 days of creditable active duty.

7.  The applicant provided a memorandum from the first sergeant of his former unit (2nd Military Police Company, 2nd Infantry Division), dated 20 August 1997, who informed him that the promotions section of the 509th Personnel Services Battalion was unable to locate the rescinded orders for his promotion.

8.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service.  Paragraph 12-3b states that retirement normally will be in the regular or reserve grade the Soldier holds on the date of retirement.  

9.  Army Regulation 635-200, paragraph 12-6 (Advancement on the Retired List), contains guidance on the advancement of Soldiers on the retired list and states 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.  The legal authority for this action is provided by Title 10, U.S. Code, section 3964.




10.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-10, in effect at the time at the time and currently in effect, states that Soldiers in the rank of specialist (SPC) through MSG are non-promotable to a higher grade when, among other reasons, a voluntary retirement application has been approved.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows his request for voluntary retirement was approved on 17 January 1997.  The governing regulation states that Soldiers in the rank of SPC through MSG are non-promotable to a higher grade when they have an approved voluntary retirement.

2.  His promotion orders for MSG were published on 11 June 1997 with an effective date of 1 July 1997.

3.  Therefore, his promotion to MSG was invalid and his promotion orders should have been revoked.  Further, the promotion orders clearly stipulated that Soldiers who are promoted automatically incurred a 2-year service obligation prior to voluntary non-disability retirement.  He did not serve the 2-year service obligation prior to his retirement for length of service.  Therefore, he is not entitled to advancement on the retired list to the rank of MSG.

4.  In view of the above, there is no basis to grant the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_x____  __x______  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________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)                                         AR20100025596



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ABCMR Record of Proceedings (cont)                                         AR20100025596



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