IN THE CASE OF:	  

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110018042 


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 the rank/grade of sergeant first class (SFC)/E-7 and placed on the retired list as an SFC/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 a page 4 of a Recommended Promotion List, dated
13 February 1970, that shows he was selected for promotion to E-7 on
27 January 1969.

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 had prior enlisted service in the U.S. Navy.

3.  He enlisted in the Regular Army (RA) on 12 January 1962.  He completed training and he was awarded military occupational specialty 45M (Aircraft Armament Subsystem Mechanic).

4.  Special Orders Number 317, issued by Headquarters, 1st Infantry Division, dated 24 December 1965, promoted the applicant to staff sergeant (SSG)/E-6.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

* item 2 (Grade) the entry “SSG E6”
* item 3 (Date of Rank) the entry “24 Dec 65”
* item 33 (Appointments and Reductions) the entry:

* SSG E6 (T) [Temporary]  24 Dec 65  SO317, Hq1stInfDivUSARPAC 1965
* SSG E6 (P) [Permanent]  24 Dec 65  Para 7-22a AR [Army Regulation] 600-200

6.  A “Statement,” by the applicant, dated 30 September 1971, shows he reviewed his military records and DA Form 3355-R (Promotion Points Worksheet) and certified the administrative points and total points awarded were correct.  He indicated his grade was "E6" and he placed his signature on the document.

7.  A DA Form 2339 (Application for Voluntary Retirement) shows the applicant requested voluntary retirement from active duty effective 31 July 1972 and placement on the Retired List effective 1 August 1972.  It also shows in:

	a.  item 5 (Current Grade, Pay Grade, Date of Rank and MOS) the entry "SSG, E-6, 24 December 1965, 45M4LFR"; and

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

	c.  The applicant placed his signature on the document on 28 February 1972.


8.  Letter Orders Number RE 7-193, issued by Headquarters, Fifth U.S. Army, Fort Sam Houston, TX, dated 24 July 1972, released the applicant from active duty in the rank/grade of SSG/E-6 on 31 July 1972 and placed him on the retired list in the same rank/grade of SSG/E-6 effective 1 August 1972.

9.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was retired from active duty on 31 July 1972 under the provisions of Title 10, U.S. Code, section 3914, due to sufficient service for retirement and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  He completed 20 years and 22 days of total active service.  It also shows in:

* Item 5a (Grade, Rate or Rank) the entry “SSG”
* item 5b (Pay Grade) the entry “E-6”
* item 6 (Date of Rank) the entry “24 Dec 1965”

10.  There is no evidence of record and the applicant did not provide any evidence that shows he was promoted to SFC/E-7.

11.  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 RA or Reserve of the Army member who retires other than for physical disability retires in the RA or Reserve grade that he or she holds on the date of retirement.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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 (Retirement), 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 his records should be corrected to show he was promoted to SFC/E-7 and placed on the Retired List that same rank/grade.

2.  The applicant was promoted to SSG/E-6 on 24 December 1965.

3.  Records show the applicant was recommended for promotion to SFC/E-7.  However, there is no evidence to support his contention that he was or should have been promoted to SFC/E-7 prior to his retirement.


4.  On 28 February 1972, the applicant applied for voluntary retirement.  At that time, he acknowledged with his signature that SSG/E-6 was the highest rank/
grade he held while serving on active duty.

5.  Records confirm the applicant held the rank/grade of SSG/E-6 when he was honorably retired from active duty on 31 July 1972.

6.  By regulation, the rank/grade held on the date of separation from active duty will be entered in item 5a and item 5b of the DD Form 214.  The evidence of record confirms the applicant held the rank/grade of SSG/E-6 on the date he retired from active duty.  As such, there is no error with respect to the entries in item 5a and item 5b of his DD Form 214.  In addition, the retired grade in which the applicant was placed on the Retired List is correct.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant’s requested relief.

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)                                         AR20110018042



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ABCMR Record of Proceedings (cont)                                         AR20110018042



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