IN THE CASE OF:
BOARD DATE: 25 September 2012
DOCKET NUMBER: AR20120005019
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 the grade of master sergeant (MSG)/E-8 on the Retired List.
2. The applicant states he was promoted to MSG/E-8 at Fort Lewis, Washington and would like to be advanced to that grade on the Retired List under the provisions of Title 10 of the U.S. Code, Section 3964 (10 USC 3964).
3. The applicant provides a self-authored letter and the 9 enclosures identified therein 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 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 applicants record shows he initially enlisted in the Regular Army on
16 November 1970, and continuously served on active duty through reenlistments for 21 years, 7 months, and 15 days until being honorably retired on 30 June 1992.
3. The applicants DA Form 2-1 (Personnel Qualification Record) confirms he was promoted to SFC/E-7 on 18 September 1984 and that this is the highest grade he attained while serving on active duty in item 18 (Appointments and Reductions). There is no entry indicating a promotion to MSG/E-8 in item 18.
4. The applicants Military Personnel Records Jacket (MPRJ) contains a
DA Form 2339 (Application for Voluntary Retirement), dated 31 January 1992. This document shows the applicant requested voluntary retirement on 30 June 1992. It also shows he held the grade of sergeant first class (SFC)/E-7 in item 5 (Current Grade/Pay Grade) and that this is the highest grade he served in on active duty in item 6 (Highest Grade Served on Active Duty).
5. The MPRJ also contains a DA Form 3713 (Data for Retired Pay) completed on 31 January 1992 during the applicants retirement processing. This form confirms the applicant held the grade SFC/E-7 on that date in item 2 (Active Duty Grade); that this grade would be his retired grade in item 3 (Retired Grade); and that this was the highest grade he held and served in on active duty in item 8 (Highest Grade Attained).
6. The MPRJ is void of any orders or other documents that indicate the applicant was ever promoted to MSG/E-8 by proper authority while serving on active duty.
7. On 15 September 2010, in response to the applicants request for advancement on the Retired List, the Senior Legal Advisor, Army Review Boards Agency, informed the applicant that after a review of his Official Military Personnel File (OMPF) he had determined the applicant was not eligible for advancement on the Retired List by the Army Grade Determination Review Board under the provisions of 10 USC 3964 because his records did not reflect he was promoted to the grade of MSG/E-8.
8. The applicant provides leave and earnings statement inquiries for the months of April through July 1992 that indicate his pay grade was E-8.
9. Title 10 of the U.S. Code, section 3964 provides the legal authority for advancement of warrant officers and enlisted members on the Retired List. It states, in pertinent part, that warrant officer and enlisted members of the Army are entitled, when their active service plus their service on the retired list totals
30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.
DISCUSSION AND CONCLUSIONS:
1. The applicants request that he be advanced to the rank and pay grade of MSG/E-8 on the Retired List was carefully considered. However, there is insufficient evidence to support this claim.
2. By law, warrant officer and enlisted members of the Army are entitled, when their active service plus their service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.
3. Notwithstanding the LES provided by the applicant, the evidence of record confirms the applicant held the grade of SFC/E-7 at the time of his retirement and that this is the grade in which he was placed on the Retired List. It also shows this is the highest grade he attained, held, and served in while on active duty, as evidenced by the DA Forms 2339 and 3713 in the MPRJ and the entries in item 18 of his DA Form 2-1. Absent any evidence of record corroborating the grade information provided in the LESs provided by the applicant, 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 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) AR20120005019
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120005019
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