IN THE CASE OF:	  

		BOARD DATE:	    2 August 2011

		DOCKET NUMBER:  AR20110001273 


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 to be advanced on the retired list to the highest rank she held of staff sergeant (SSG)/E-6.  

2.  She states she:

* retired as a sergeant (SGT)/E-5 and it has been over 13 years since she retired
* understands that after 10 years, she can have her records show she held the highest rank of SSG/E-6
* recalls that Soldiers who were reduced in rank could be advanced to their highest rank held on active duty after 10 years of retirement

3.  She provides no additional documents.  

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 18 October 1974.  She was promoted to specialist five (SP5) on 7 February 1975.  She was honorably discharged on 19 July 1977 in the rank of SP5.  

3.  She reenlisted on 20 July 1977 and continued to serve on active duty through a series of reenlistments.

4.  Orders published on 9 November 1984 show she was promoted to SSG with an effective date of 9 November 1984 and a date of rank of 1 October 1984 and she was awarded military occupational specialty 71L3O (Administrative Specialist), effective 1 November 1984.  

5.  On 5 October 1987, she accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for making and uttering worthless checks.  Her punishment consisted of a reduction to pay grade E-5.

6.  In a 10 October 1989 memorandum, the applicant was notified that the Calendar Year (CY) 1989 Master Sergeant/Sergeant Qualitative Management Program (QMP) Selection Board reviewed her Official Military Personnel File (OMPF) and the board determined that she be barred from reenlistment.  The QMP Selection Board identified the documents (two Enlisted Evaluation Reports (EERs) and two DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ)) indicating areas of weakness which contributed to the board’s decision to bar her from reenlistment.  On 5 June 1990, her commander’s appeal of the Department of the Army (DA) bar to reenlistment was reviewed by a DA Standby Advisory Board and was approved.  

7.  In a 1 November 1991 memorandum, she was notified that the CY91 Master Sergeant/Sergeant Selection Board reviewed her OMPF and the board determined that she be barred from reenlistment.  The QMP Selection Board identified the documents (four EERs and three DA Forms 2627) indicating areas of weakness which contributed to the board’s decision to bar her from reenlistment.  On 5 June 1992, the commander’s appeal of the DA bar to reenlistment was reviewed by a DA Standby Advisory Board and was approved.  

8.  She was discharged on 22 September 1993 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 16-8 for the early release program – Special Separation Benefit (SSB) in the rank of SGT.  At the time of her discharge, she had completed 18 years, 11 months, and 5 days total active service.  As a condition of the SSB program, she was enlisted in and assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

9.  Her records in the integrated Personnel Management Records System (iPERMS) shows she retired from the USAR due to completion of 20 or more years of active Federal service and was placed on the retired list in the rank/pay grade of SGT/E-5 on 1 February 1997.

10.  Title 10, U.S. Code, section 3964, provides that retired personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service.  This service may consist of combined active service and service in the U.S. Army Reserve Control Group (Retired), and the Army Grade Determination Board is the agency that reviews the records and/or applications for advancement on the Retired List on behalf of the Secretary for those who have attained 30 years of service.

11.  Army Regulation 135-180 (Army National Guard and Army Reserve - Qualifying Service for Retired Pay Nonregular Service), paragraph 2-11, states service in the highest grade will not be deemed satisfactory and the case will be forwarded to the Secretary of the Army’s Ad Hoc Review Board for final determination of the Soldier’s retirement grade if, during the mandatory review of the Soldier’s records by the Retired Activities Directorate, it is determined that revision to a lower grade was expressly for prejudice or cause or there is information in the Soldier’s service record to indicate clearly that the highest grade was not served satisfactorily.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that she retired as an E-5 and it has been over 13 years since she retired is acknowledged.  However, the evidence of record doesn’t indicate that an error or injustice exists in this case.  

2.  The evidence of record shows she was promoted to SSG on 9 November 1984 and was reduced to SGT on 5 October 1987 as a result of misconduct and receipt of an Article 15.  Therefore, it is concluded that she did not hold the rank/pay grade of SSG/E-6 satisfactorily.  

3.  Her service record shows she was discharged from active duty on 22 September 1993 under the provisions of Army Regulation 635-200 paragraph 16-8 by reason of early release program – SSB in the rank of SGT/E-5.  She had served 18 years, 11 months, and 5 days total active military service.  She retired by reason of completing 20 or more years of active Federal Service and was placed on the retired list on 1 February 1997

4.  By law, retired personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service.  

5.  Since she was reduced from the rank/pay grade of SSG/E-6 as a result of misconduct, it is concluded she is not eligible to be advanced on the retired list to the highest rank she held of SSG/E-6.  

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)                                         AR20110001273





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ABCMR Record of Proceedings (cont)                                         AR20110001273



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