IN THE CASE OF:	  

		BOARD DATE:	  18 April 2012

		DOCKET NUMBER:  AR20110018714 


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 advanced on the retired list to pay grade E-8.

2.  The applicant states, in effect, the highest rank/grade he held was master sergeant (MSG)/E-8 and he should be advanced on the retired list as such.
He adds his advancement on the retired list is provided for in Title 10, U.S. Code, section 3964, Higher grade after 30 years of service:  warrant officers and enlisted members.

3.  The applicant provides a copy of his DA Form 4980-12 (Meritorious Service Medal Certificate) and DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

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.  A DD Form 214 (Army Forces of the United States Report of Transfer or Discharge) shows the applicant had prior honorable enlisted service in the Army of the United States from 24 August 1961 through 10 August 1963.  Item 3 (Grade, Rate or Rank) shows "PFC E-3 (P)" (i.e., private first class E-3 (permanent).

3.  The applicant enlisted in the Regular Army (RA) on 28 January 1965 and served continuously on active duty through subsequent reenlistments.

4.  Order Number 68-45, issued by the U.S. Army Military Personnel Center, Alexandria, Virginia, dated 25 May 1984, promoted the applicant to sergeant first class (SFC)/E-7 with an effective date of 1 July 1984 and a date of rank (DOR) of 4 June 1984.

5.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions) the last entry of SFC with a DOR of 4 June 1984.

6.  On 7 February 1986, the applicant submitted a DA Form 3072 (Request for Waiver of Disqualification for Enlistment/Reenlistment in the RA for In-Service Personnel).  He requested a waiver of the retention control point (RCP) for grade E-7 for the purpose of extending his enlistment for a period of 3 months.  His request was approved on 20 February 1986.

7.  Orders 310-30, issued by Headquarters, 2nd Infantry Division, dated
6 November 1986, retired the applicant on 31 May 1987 and placed him on the Retired List effective 1 June 1987 in the retired rank/grade of SFC/E-7.

8.  The applicant's DD Form 214 for the period ending 31 May 1987 shows he was retired under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 12, for length of service and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  He completed 24 years, 3 months, and 22 days of creditable active service.  It also shows in:

* Item 4a (Grade, Rate or Rank) the entry "SFC"
* item 4b (Pay Grade) the entry "E7"
* item 12 (Record of Service), Block h (Effective Date of Pay Grade) the entry "84  06  04" (i.e., 4 June 1984)
9.  The applicant's military personnel record does not contain any evidence that shows he was promoted to MSG/E-8 or that he satisfactorily served on active duty in the grade of E-8.

10.  The applicant provides a copy of a DA Form 4980-12 that shows he was awarded the Meritorious Service Medal on 18 September 1987 as a retirement award.  It also shows his rank was SFC.  The citation reads in part, “For meritorious service…culminating as First Sergeant, Headquarters and Headquarters Company, 122d….”

11.  Army Regulation 635-200, 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, 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.

12.  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 RA or Reserve grade that he or she holds on the date of retirement.

13.  Title 10, U.S. Code, section 3964 provides that each retired member of the Army who is retired with less than 30 years of active service is entitled, when his or her active service plus his or her service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he or she served on active duty satisfactorily, as determined by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was advanced on the retired list to pay grade E-8.

2.  The applicant was promoted to SFC/E-7 on 4 June 1984.

3.  On 7 February 1986, the applicant requested a waiver of the RCP for his grade (E-7) in order to extend his enlistment a period of 3 months, which was approved.

4.  Records confirm the applicant held the grade of E-7 when he was honorably retired from active duty on 31 May 1987 and he was placed on the Retired List in that grade.
5.  The DA Form 4980-12 shows he may have worked in a First Sergeant position (pay grade E-8); however, there is no evidence of record and the applicant did not provide any evidence that shows he was promoted to or that he served on active duty satisfactorily in the rank/grade of MSG/E-8.  Therefore, he is not entitled to be advanced on the retired list.

6.  In view of the foregoing, there is no 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)                                         AR20110018714



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ABCMR Record of Proceedings (cont)                                         AR20110018714



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