BOARD DATE: 27 March 2012
DOCKET NUMBER: AR20110018486
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 advancement to master sergeant (MSG)/E-8 on the Retired List, a grade he temporarily held.
2. The applicant states a service member retiring with less than 30 years of service, who held a temporary higher grade than the grade in which retired, receives retired pay in the grade held at the time of retirement until the total active duty and retired service reaches 30 years. At that time the retired member is advanced to the higher grade and retired pay is then based on the higher grade.
3. The applicant provides a promotion order and Certificate of Promotion in support of his application.
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 was honorably retired in the rank of sergeant first class (SFC)/E-7 on 30 April 1996.
3. Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to SFC/E-7 on 1 July 1990 and this was the highest grade he attained while serving on active duty.
4. His record contains a DA Form 2166-7 (Noncommissioned Officer Evaluation Report (NCOER) for the period March 1995 through February 1996 which shows the applicant's rank as SFC and his date of rank as 1 July 1990. This is his last NCOER of record.
5. His record contains a DA Form 2339 (Application for Retirement), dated 26 February 1996, which shows the applicant requested retirement on 1 May 1996. Item 5 (Current Grade) indicates the applicant held the rank of SFC/E-7 at the time and item 6 (Highest Grade Served on Active Duty) shows SFC/E-7 is the highest rank he held and served on active duty.
6. His record also contains a U.S. Total Army Personnel Command (now known as U.S. Army Human Resources Command) Order Number 313-7, dated 9 November 1995, which promoted him to MSG/E-8 effective 1 December 1995.
7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) issued upon his retirement on 30 April 1996 lists his rank as SFC/E-7.
8. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) prescribes the policy for the administrative separation of enlisted personnel. Chapter 12 contains guidance on retirement. It states that members retire in the grade they hold on the date of retirement. Members promoted to MSG incur a
2-year service obligation to be completed prior to retirement and Soldiers who have an approved retirement are in a non-promotable status. However, the regulation also stipulates a promoted member will not be administratively reduced to terminate a service obligation. Exceptions to service obligations may be granted when the best interest of the Service is involved or when substantial hardship exists or would result if the Soldier is not retired.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for advancement on the Retired List has been carefully considered. While it appears the applicant was promoted to MSG/E-8 prior to retirement, the record clearly indicates he never held or served in that grade, as evidenced by the last NCOER in his record and by his retirement application.
2. If the applicant had actually been promoted and was serving as an MSG/E-8 at the time of his retirement, he should have been retired in that grade given that a member cannot be administratively reduced to terminate a service obligation. In other words, if he actually held and was serving as an MSG/E-8 he would have retired in that grade with a waiver of his service obligation.
3. All documents in his record, including his retirement packet, indicate the highest grade he held on active duty was SFC/E-7. Absent documentary evidence confirming the applicant was physically promoted to and performed duties in the grade of MSG/E-8, it is reasonable to presume he declined the promotion and/or was considered to be in a non-promotable status based on his approved retirement at the time and that his promotion to MSG/E-8 was revoked on that basis. As a result, absent any evidence of his satisfactory performance as an MSG/E-8, there is an insufficient evidentiary basis to support granting the 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 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) AR20110018486
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ABCMR Record of Proceedings (cont) AR20110018486
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