BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110002096 


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 item 5a (Grade, Rate or Rank) of his 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show “1SG” (First Sergeant) instead of “MSG” (Master Sergeant).

2.  He states his record is in error because Department of the Army Special Orders (DASO) 247, dated 1 February 1971 shows his rank as 1SG/E-8 in military occupational specialty (MOS) 11G5O and not in MOS 11F5H.    

3.  He provides:

* His DD Form 214 for the period ending 31 January 1971
* A DA Form 20 (Enlisted Qualification Record)

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.  His military personnel record shows he enlisted in the Regular Army on 
19 January 1951.  He remained on active duty until his honorable retirement. 

3.  Special Orders (SO) Number 22, dated 31 January 1968 shows he was promoted to the grade of MSG/E-8.  This order does not contain an effective date. 

4.  SO Number 289, dated 15 October 1968 shows he was serving in the grade of MSG/E-8 with a Date of Rank (DOR) of 1 January 1968 at the time he was laterally appointed to the grade of 1SG/E-8 effective 18 October 1968.  This order does not show he was awarded a special qualification identifier (SQI) of “M” for 1SG nor does his record contain any documentation which shows he was awarded SQI "M.".

5.  His record also contains SO Number 254, dated 1 December 1969.  This order shows he was reappointed to the grade of MSG/E-8 effective 17 August 1969.  

6.  Item 33 (Appointments and Reductions) of his DA Form 20 confirms the same effective dates and DOR as cited in his orders for his promotion and appointment to 1SG and MSG. 

7.  Item 38 (Record of Assignments) of his DA Form 20 shows he served in the position of 1SG/E-8, Company E, 3rd Battalion, 7th Infantry Regiment, 199th Infantry Brigade while assigned to Vietnam from 13 October 1968 through 
27 January 1969.  On 28 January 1969, he became the Operations Sergeant for Headquarters and Headquarters Company, 3rd Battalion, 7th Infantry Regiment, 199th Infantry Brigade in Vietnam. 

8.  His records contain a DA Form 2339 (Application for Voluntary Retirement), dated 1 February 1970.  Item 11 (Highest Grade Served on Active Duty) shows “MSG/E-8.”

9.  DASO Number 247, dated 22 December 1970, released the applicant from active duty on 31 January 1971 and, on the date following, placed him on the retired list and transferred him to the U.S. Army Reserve (Retired Reserve) in the rank of MSG/E-8.

10.  The applicant's DD Form 214 for the period ending 31 January 1971 shows his rank as MSG/E-8.
11.  Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 2-41a (lateral appointments), in effect at the time, stated noncommissioned officers (NCOs) may be laterally appointed from one NCO grade to another within the same pay grade when change of duty required.  Change of duty for an E-8 required lateral appointment to/from MSG/1SG.  This regulation also stated the SQI for 1SG was "M."

12.  Army Regulation 635-200 (Personnel Separations), in effect at the time, stated to enter the grade taken from item 11 of the DA Form 2339 or the grade at the time of retirement on the DD Form 214.  It did not provide for entering lateral appointments to the grade of 1SG/E-8 on the DD Form 214.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 12, paragraph 12-17, currently in effect, states that NCOs holding the rank of MSG at the time of retirement and whose records show successful service as a 1SG; will be placed on the retired list in the grade title 1SG/First Sergeant.  The only criteria for such placement on the retired list are:

   a.  Soldier must be serving as, and retiring as, a MSG,
   
   b.  Soldier must possess special qualification identifier "M," and
   
   c.  Soldier must have served as 1SG in grade of MSG.  No minimum time period is specified.  Service in the duty action of first sergeant while in the grade of sergeant first class does not meet this requirement.

14.  Army Regulation 635-5 (Separation Documents), in effect at the time of his retirement on 31 January 1971, prescribed the separation documents which were prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It also established standardized policy for the preparation of the DD Form 214.  It stated, for item 5, enter the active duty rank at the time of separation.

15.  Army Regulation 635-5, currently in effect, also states to enter the current active duty grade or rank and pay grade at the time of separation from the personnel records. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to amend his DD Form 214 to show his retired grade as 1SG” instead of “MSG” was carefully considered.  

2.  His records confirm he was promoted to grade of MSG (T) with a DOR of 
31 January 1968.  He was laterally appointed to the grade of 1SG (T) on 
18 October 1968.  It is apparent that an administrative oversight occurred which inadvertently omitted the SQI “M” from his lateral appointment orders.   Although his record is void of any evidence to show he was awarded the SQI “M”, he successfully served in a valid 1SG billet while assigned to Vietnam for a period of 3 months.  

3.  Army Regulation 635-200, currently in effect, states there is no minimum time period for serving in a 1SG billet and that NCOs holding the grade of MSG at retirement, whose records show successful service as a 1SG, are placed on the Retired List in the grade title "1SG."

4.  Therefore, in the interest of equity, it would be appropriate to correct all Army records to show he was placed on the Retired List in the grade title/rank of "First Sergeant.” 

5.  Army Regulation 635-5 states to enter the active duty rank at the time of retirement in item 5 of the DD Form 214.  At the time of his retirement he was serving in the grade of MSG.  Therefore, he is not entitled to this portion of the requested relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X__  __X______  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for a partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by placing the applicant on the Retired List in the grade title/rank of "First Sergeant."  






2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing item 5 of his
DD Form 214 to show 1SG.




      _______ _  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)                                         AR20110002096





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ABCMR Record of Proceedings (cont)                                         AR20110002096



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