IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100026410 


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 promoted to sergeant first class (SFC)/pay grade E-7, and placed on the retired list in pay grade E-7.

2.  The applicant states, in effect, he was recommended for promotion to the next higher grade and there was no reason he should not have been promoted.  He states all of his records should be reviewed.

3.  The applicant provides no additional documentary evidence in support of his application.

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 was inducted into the Army of the United States on 2 June 1970, he enlisted in the Regular Army (RA) on 13 June 1971, and served continuously on active duty through 30 June 1990.

3.  Headquarters, U.S. Army Infantry Center, Fort Benning, GA, Order 232-355, dated 20 August 1982, promoted the applicant to staff sergeant (SSG)/pay grade E-6 with a date of rank of 6 August 1982, effective 1 September 1982.

4.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 11 October 1988, shows nonjudicial punishment (NJP) was imposed against the applicant for wrongfully using marijuana.  His punishment was a forfeiture of $200.00 pay for 2 months and reduction to sergeant (SGT)/pay grade E-5 (suspended) to be automatically remitted if not vacated before 10 April 1989.

5.  The applicant's DA Form 2A (Personnel Qualification Record - Part I), Section II (Qualification Data), shows in:

* item 1 (Grade/Code) - "SSG 6"
* item 2 (Date of Rank) - "820806" (6 August 1982)
* item 15 (Promotion Indicator) is blank

6.  A DA Form 2339 (Application for Voluntary Retirement), dated 11 July 1989, shows he requested voluntary retirement from active duty effective 30 June 1990 and placement on the retired list effective 1 July 1990.  It also shows in:

   a.  item 6 (Current Grade, Pay Grade, Effective Date of Promotion, and MOS [Military Occupational Specialty]) - "SSG, E-6, 820901, 94B3O" [Food Service Specialist]; and

   b.  item 6 (Highest Grade Served on Active Duty and Branch of Service) - "SSG RA."

7.  Headquarters, III Corps, Fort Hood, TX, Orders, dated 4 August 1989, released the applicant from active duty in the rank of SSG/E-6 on 30 June 1990 and placed him on the retired list in the retired grade of rank of SSG/E-6 effective 1 July 1990.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired from active duty on 30 June 1990 under the provisions of chapter 12, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), due to voluntary retirement for length of service and transferred to the U.S. Army Reserve Control Group (Retired).  He had completed 20 years and 29 days of total active service.  It also shows in:

* Item 4a (Grade, Rate or Rank) - "SSG"
* item 4b (Pay Grade) - "E6"
* item 12 (Record of Service), block h (Effective Date of Pay Grade) -
"82 09 01" (1 September 1982)

9.  A review of the applicant's military personnel records revealed no evidence that he was recommended for or promoted to SFC/E-7.

10.  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 RA or Reserve grade that he or she holds on the date of retirement.

11.  Army Regulation 635-200, in effect at the time the applicant retired from active duty, provided the authority for the separation of Soldiers from the Active Army.  Chapter 12, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was promoted to SFC/E-7 and placed on the retired list in pay grade E-7.

2.  The applicant was promoted to the rank of SSG/E-6 on 1 September 1982.  

3.  Records show the applicant was in a non-promotable status based on NJP that reduced him to SGT (E-5) and suspended the punishment from 11 October 1988 through 10 April 1989.

4.  On 11 July 1989, 2 months after the suspended punishment ended, the applicant applied for voluntary retirement.  At that time, he acknowledged with his signature that SSG/E-6 was the highest grade he held while serving on active duty.

5.  Records confirm the applicant held the grade of E-6 when he was honorably retired from active duty on 30 June 1990.

6.  There is no evidence to support his contention that he should have been promoted to SFC/E-7.
 
7.  By regulation, the rank and pay grade held on the date of separation from active duty will be entered in item 4a and item 4b of the DD Form 214.  The evidence of record confirms the applicant held the rank and pay grade of SSG/ E-6 on the date he retired from active duty.  Thus, there is no error with respect to the entries in item 4a and item 4b 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)                                         AR20100026410



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ABCMR Record of Proceedings (cont)                                         AR20100026410



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