IN THE CASE OF:	  
		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110018353 


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 his rank to command sergeant major (CSM) be reinstated.

2.  The applicant states, in effect, that he had to retire 5 months early due to Post Traumatic Stress Disorder (PTSD) and his early retirement caused him to be demoted (sic) (laterally appointed) to sergeant major (SGM).  He contends that after serving almost 35 years of service with two tours to Bosnia, he was dealing with deep depression caused by his PTSD.  The demotion (sic) (lateral appointment) and downgrading of his retirement award to a Meritorious Service Medal further complicated his medical condition.

3.  The applicant provides copies of award certificates, training certificates, appointment orders, reassignment orders, security clearance determination, retirement documents, which are found in his military records.  He provides the following additional documents:

* Department of the Army (DA) photograph, size 8x10
* Biographical Sketch, dated 28 July 2011
* County of Alameda Certificate of Live Birth
* Marriage Certificate, dated 27 July 1974
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and DD 215 (correction to DD Form214), effective 17 January 1970
* Army Human Resources Command Form 249-2-E (Chronological Statement of Retirement Points), dated 4 June 2004
* Combat Related Special Compensation Division Letter, dated 15 January 2008
* DA Form 873 (Certificate of Clearance and/or Security Determination), finalized 16 December 1998
* DD Form 108 (Application for Retied Pay Benefits)
* DD Form 2656 (Data for Payment of Retired Personnel)
* DD Form 1883 (Survivor Benefit Plan Election Certificate)

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.  On 1 February 1999, the applicant was appointed to CSM in the U.S. Army Reserve.

3.  A DA Form 4187 (Personnel Action), dated 5 February 2002, shows his appointment as a CSM was terminated and he was reappointed a SGM, effective 10 January 2002.  This action also shows in the Remarks Section: "Authority:  AR 135-205, paragraph 6-27."  The additional Instructions read:  "Soldier does NOT have reappointment rights.  Soldier is a graduate of the Sergeants Major Academy."

4.  The U.S. Army Reserve Personnel Command issued Orders Number C-02-203589, dated 5 February 2002, releasing him from Headquarters and Headquarters Company, 14th Psychological Operations Battalion, and transferring him to the Retired Reserve in the rank of SGM, effective 10 January 2002.

5.  His medical records were not available for review.  The applicant provides a letter from Combat Related Special Compensation Division, dated 15 January 2008, which shows his combat related disability was upgraded to100 percent, effective July 2007.

6.  In addition, he provided a DA photograph, training certificates, award certificates, a biography, and related documents chronicling his service record.

7.  Army Regulation 135-205 (Army National Guard and Army Reserve Enlisted Personnel Management), in effect at the time, paragraph 6-27(b) (Termination of CSM appointment) provides the appropriate commander will immediately reclassify the CSM as a SGM.  This is mandatory when a CSM:

* Voluntarily withdraws from the CSM Program
* Is reassigned to another position that is not a CSM position
* Removed for cause

8.  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.  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.

9.  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 regular or reserve grade that he or she holds on the date of his or her retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his rank to CSM be reinstated.

2.  The record of evidence clearly shows that upon the termination of his CSM appointment he was not authorized reappointment.  The applicant contends he was laterally appointed to SGM because his PTSD/depression forced him to retire 5 months early.  Unfortunately, the complete facts and circumstances relating to the termination of his CSM appointment are not available.  Further, there is no evidence and he has not provided any evidence, to support his claim that his medical condition lead to his reappointment to SGM.



3.  At the time of his retirement he held the rank of SGM.  Both regulatory guidance and law provide that a member retires in the regular or reserve grade that he or she holds on the date of his or her retirement.  Lacking evidence to the contrary, it is presumed his reappointment to SGM was done in accordance with applicable regulation and there is no apparent error or injustice.  As a result, there is insufficient evidence to reinstate his rank to CSM.

4.  Based on the above, his request should be denied.

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)                                         AR20110018353





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ABCMR Record of Proceedings (cont)                                         AR20110018353



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