IN THE CASE OF:
BOARD DATE: 19 July 2012
DOCKET NUMBER: AR20120001444
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 change of the effective date of his advancement on the Retired List to the rank/grade of staff sergeant (SSG)/E-6 from 24 November 2008 to 1 December 1998 and payment of back pay to that date.
2. The applicant states he was advanced on the Retired List effective
24 November 2008 and only received back pay from that date; however, he should have been advanced effective 1 December 1998.
3. The applicant provides:
* a one-page letter explaining his application
* his DD Form 214 (Report of Separation from Active Duty) for the period ending 5 August 1977
* his DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 July 1992 and 30 November 1998
* a letter from the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 24 August 2011
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records to excuse an applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant initially enlisted in the Regular Army (RA) on 6 August 1974 and served until he was honorably released from active duty (REFRAD) on 5 August 1977 in the rank/grade of specialist four (SP4)/E-4.
3. He again enlisted in the RA on 3 January 1978 and he was promoted to SSG/E-6 on 8 July 1983. He served until he was honorably discharged on 1 July 1992 under the Fiscal Year 1993 Enlisted Voluntary Early Transition Program and Special Separation Benefit (SSB) Program. He was paid $55,197.45 in SSB benefits.
4. On 14 March 1997, he again enlisted in the RA in the rank/grade of sergeant (SGT)/E-5 for a period of 2 years.
5. On 30 November 1998, the applicant was retired by reason of sufficient service for retirement and he was transferred to the Retired List effective
1 December 1998 in the rank/grade of SGT/E-5. He completed 20 years and
7 days of creditable active service. His basic active service date (BASD) was computed as 24 November 1978.
6. On 25 July 2011, the Army Grade Determination Review Board (AGDRB) determined that the highest grade in which the applicant satisfactorily served for the purpose of computation of retired pay was SSG/E-6.
7. On 24 August 2011, HRC determined that the applicants date of advancement on the Retired List should be 24 November 2008, the applicants 30-year mark.
8. On 18 November 2011, the Defense Finance and Accounting Service (DFAS) notified the applicant that he was entitled to back pay to 24 November 2008 based on the effective date of his advancement on the Retired List.
9. Title 10, U.S. Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held, as determined by the Secretary of the Army, upon completion 30 years of service. This service may consist of combined active service and service in the USAR Control Group (Retired).
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that the date he was advanced on the Retired List to the pay grade of E-6 should be 1 December 1998 instead of 24 November 2008 has been noted and found to lack merit.
2. While the applicant had previously served in the pay grade of E-6, he was not serving in the pay grade of E-6 when he transferred to the Retired List in 1998. He completed 20 years and 7 days of total active service and his BASD at the time of his retirement was 24 November 1978.
3. Accordingly, the applicant was properly advanced on the Retired List to SSG/E-6 effective 24 November 2008, the date he completed 30 years of combined active service and service in the USAR Control Group (Retired). He has failed to show that an error or injustice exists in his case.
4. 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) AR20120001444
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ABCMR Record of Proceedings (cont) AR20120001444
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