IN THE CASE OF:	  

		BOARD DATE:	    5 January 2012

		DOCKET NUMBER:  AR20110011575 


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, placement on the Retired List in the rank and pay grade of Master Sergeant (MSG), E-8. 

2.  In a letter, dated 16 May 2011, to the Army Grade Determination Review Board (AGDRB) he stated that:

   a.  He enlisted in the Army in the late 1930s and served during World War II and the Korean War.  He retired with an honorable discharge on 28 February 1961, in the rank and pay grade of sergeant first class (SFC), E-7.  While in Korea, a Lieutenant (LT) HXXX approached him and asked him, “How long had he been a SFC?”  He responded, “It had been 15 years or more.”  He told LT XXX that the commanding officer had filled and signed his promotion to MSG and handed it over to the first sergeant for processing.  

	b.  A few months had passed and he never heard anything else about his promotion.  Later LT HXXX asked him why he was not wearing his MSG insignia and stated that he would look into the matter.  He never heard from LT HXXX again.  He was assured his promotion was signed and processed, but he did not bother following up.  He served with pride and honor during his career in the military service.

	c.  According to a letter, dated 17 November 2010, from a Member of Congress, his military records have been reviewed and he understands that he was eligible for promotion to MSG before he retired.  It would be very honorable for him at his age of 101 to receive that promotion, since it was one of his military goals to achieve that rank during his tenure in the U.S. Army.

3.  He provides:

* DD Form 214 (Report of Separation from the Armed Forces of the United States) ending on 6 December 1951
* Two Letters of Appreciation, dated 17 and 30 July 1959
* Two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) ending on 24 November 1957 and 28 February 1961
* Two letters to the AGDRB (Application for the AGDRB), dated 16 and 23 May 2011; with his military biography, his letter from a Member of Congress, dated 27 November 2010, and a U.S. National Archives & Records Administration printout

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’s military record contains a War Department Form 372A (Final Payment-Work Sheet) which shows he enlisted in the Regular Army (RA) on 7 December 1945.  He was discharged on 6 December 1948, in the rank of SFC, at the expiration of his term of service (ETS).  There is no evidence he was issued a DD Form 214.

3.  He reenlisted in the RA on 7 December 1948 in the rank of SFC with a date of rank of 19 May 1944.  He was honorably discharged on 6 December 1951.  He was issued a DD Form 214 showing his grade as SFC with a date of rank of 19 May 1944.  

4.  He again enlisted in the RA on 28 October 1954 for 3 years.  He was honorably discharged, in the rank of SFC, on 24 November 1957, at his ETS.  He was issued a DD Form 214 showing his grade as SFC (P (Permanent)). 

5.  He reenlisted in the RA on 25 November 1957 for 3 years.  He received two Letters of Appreciation in 1959 for his experience as a recoilless rifleman in the unit.

6.  He was honorably retired in the rank of SFC (pay grade E-6) on 28 February 1961.  He was credited with completion of 20 years, 10 months, and 29 days of total active service and 32 years, 7 months, and 19 days of total service.

7.  He was issued a DD Form 214 that shows in Item 3 (Grade, Rate, or Rank) SFC (P) (E-6).  Item 3b (Date of Rank) shows 19 May 1944, indicating the date he was promoted to SFC.  

8.  In a letter, dated 17 November 2010, a Member of Congress advised the applicant that they had received a response from the National Personnel Records Center (NPRC) in August 2010.  The NPRC stated that his record did not consist of any documentation showing he was promoted to rank of MSG.  His “WDAGO” showed that he was qualified for the rank; however, there was no indication that he was actually promoted.  

9.  The Enlisted Grade Structure of the Army chart shows that during the applicant’s period of service the rank of SFC was pay grade E-6 (until 1 June 1958) and E-7 (after 1 June 1958).  The restructuring of 1958 noted that members in the grade E-5, E-6, and E-7 could retain the grade held on 31 May 1958 unless a personnel action resulted in a promotion or reduction in grade, in which case the 1 June 1958 grade applied.

10.  Army Regulation 624-200 (Promotions, Demotions, and Reductions – Appointment and Reduction of Enlisted Personnel), in effect at the time, prescribed the policies governing appointment and reduction of all enlisted personnel on active duty, other than active duty for training.  Paragraph 16 stated that for temporary appointment to pay grade E-4 to E-9 appointment authorities would ensure that appointments did not exceed local pay grade vacancies, major command ceilings, or allotted quotas.  Paragraph 17 stated that in order to be eligible for temporary appointment to pay grade E-8 an individual must have completed 14 months in pay grade E-7.  In addition, the individual must have completed 18 years of active duty and have at least 10 years of cumulative enlisted service creditable in the computation of basic pay.

11.  Army Regulation 624-200, paragraph 23, stated RA personnel who met the eligibility requirements would be recommended by their immediate commander to the appointing authority for permanent appointment.  Paragraph 23 stated that appointments will not exceed quotas allotted semiannually by Headquarters, Department of the Army.  For permanent appointment to pay grade E-8 individuals must have completed 19 years minimum time in service and 2 years minimum time in temporary pay grade E-8 or higher.  Upon completion of 29 years of active duty appointment authorities could appoint enlisted personnel to the permanent grade next above the permanent grade currently held, but in no case higher than E-7, provided they were recommended for such appointment by the immediate unit commander and was in an appointable status.

12.  Title 10, U.S. Code, section 3961, provides that each retired member of the Army, unless entitled to a higher grade under some other provision of law, retires in the regular grade that he/she hold on the date of his/her retirement.

13.  Title 10, U.S. Code, section 3964, 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 as determined by the Secretary of the Army. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered.  The evidence shows he was promoted to the rank of SFC, pay grade E-6, on 19 May 1944.  He enlisted and reenlisted in the RA in that grade.  He served in pay grade E-6 until 28 February 1961 when he was retired.  He was credited with 20 years, 10 months, and 29 days of total active service and 32 years, 7 months, and 19 days of total service.

2.  The evidence shows he completed the years (18 years) of service in effect at the time to be eligible for temporary appointment to pay grade E-8.  However, he must also have completed 14 months in pay grade E-7.  There is no evidence to show he was ever promoted to the pay grade of E-7.  

3.  For permanent promotion to pay grade E-8, he had to have completed the years of service (19 years) in effect at the time to be eligible for permanent appointment to pay grade E-8.  However, he must also have completed 2 years minimum time in the temporary pay grade E-8.

4.  There is no evidence of record and he provided none to show he was promoted, temporarily or permanently, to pay grade E-8 (or E-7) prior to his retirement on 28 February 1961.  A retired member of the Army retires in the regular grade that he held on his retirement.  There is no evidence in the available record and he provided no sufficient evidence to support the requested relief.

5.  It cannot be determined at this point in time why the applicant was not promoted to pay grade E-7 or E-8.  It is noted that at the time he stated his commander “signed his promotion to MSG” in 1961 his commander was only a recommending authority, not the promotion authority.  

6.  The evidence of record also shows the highest rank he satisfactorily held for a sufficient time for advancement on the retired list was pay grade 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)                                         AR20110011575





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110011575



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1