BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110019605


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, correction of the date he was advanced on the Retired List, from 5 August 2004 to 31 "August" 1993.

2.  He requests retroactive payment of retired pay, at pay grade E-6, from
31 "August" 1993 to 4 August 2004.

3.  The applicant states:

* in November 2003, he requested a correction to his military record to change his retired pay grade from E-5 to E-6, the highest grade he satisfactorily held prior to his retirement, and that request was approved
* the date of discovery he cited on his previous request for records correction was incorrect – the correct date should have been 31 July 1993, which is the date he was retired
* he retired from the Army in the grade E-5
* the Army Grade Determination Review Board (AGDRB) approved his request for advancement on the retired list
* he received a check for the pay grade difference; however, it was incorrect as the check only covered the period 25 October 2004 through 1 June 2005
* he is now requesting, as a follow-up, the difference between 31 "August" 1993 and 25 September 2004



4.  The applicant provides:

* a self-authored letter to U.S. Army Human Resources Command (USAHRC), Fort Knox, KY, dated 16 September 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 September 1988
* DD Form 214 for the period ending 31 July 1993
* a previously-submitted DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 18 February 2005
* a letter from the Army Review Boards Agency, Support Division, St. Louis, MO, dated 1 March 2005

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 is a retired Regular Army Soldier.

3.  On 11 March 1974, he entered active duty in the U.S. Air Force (USAF).  On
1 February 1986, he was promoted to the rank/grade of technical sergeant (TSGT)/E-6.  On 15 September 1988, he was honorably discharged from the USAF, at the completion of 14 years, 6 months, and 5 days of creditable active service.  The DD Form 214 he was issued during this period of service shows he was discharged in the rank/grade of TSGT/E-6.

4.  On 10 February 1989, he enlisted in the Regular Army, in the rank/grade of sergeant (SGT)/E-5.  On 31 July 1993, after serving 4 years, 5 months, and
21 days of active service this period, he was retired in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 12, by reason of voluntary early retirement.  Items 4a and b of his DD Form 214 for 

the period of service shows he was retired in the rank/grade of SGT/E-5.  On
1 August 1993, he was placed on the Retired List in the rank/grade of SGT/E-5.

5.  On 22 June 2005, the AGDRB reviewed the applicant's request to have his retired grade changed to E-6.  In AGDRB Docket Number AR20050002987, the board determined the highest grade in which he satisfactorily served for the purpose of computation of retired pay was E-6.

6.  On 3 August 2004, he was notified by USAHRC that he would be advanced on the retired list to the grade E-6, effective 5 August 2004.  This date is 11 years and 4 days after his date of retirement.  This period, when added to his total credited active service of 18 years, 11 months, and 26 days, equates to 30 years.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of the date he was advanced on the Retired List, from 5 August 2004 to 31 "August" 1993, and for retroactive payment of retired pay, at pay grade E-6, from 31 "August" 1993 to 4 August 2004, was carefully considered.

2.  The evidence of record shows the applicant was previously advanced on the Retired List on 5 August 2004.  This date is 11 years and 4 days after his date of retirement, a period that when added to his total credited active service of
18 years, 11 months, and 26 days, equates to 30 years.  This calculation is consistent with the law under Title 10, U.S. Code, section 3964.

3.  The applicant's case was correctly adjudicated before the AGDRB; therefore, no further action is necessary.  In view of the foregoing, he is not entitled to 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 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)                                         AR20090005877



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ABCMR Record of Proceedings (cont)                                         AR20110019605



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