IN THE CASE OF:	  

		BOARD DATE:  20 September 2012

		DOCKET NUMBER:  AR20120005285 


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, the son of a former service member (FSM) and through a General Power of Attorney, requests correction of his father's record to show he was advanced on the Retired List to master sergeant (MSG or MSGT)/pay grade E-8.

2.  The applicant states the FSM held the rank of MSGT (E-7) for a period of
4 years, 10 months, and 22 days prior to being demoted to sergeant first class (SFC)/pay grade E-6, which was the rank the FSM held at the time he retired from active duty.  He adds that the FSM should have retired as an MSG (E-8).

3.  The applicant provides:

* a Statutory Short Form of General Power of Attorney, notarized on
6 August 2008
* a copy of the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 31 May 1964
* an AGUZ Form 658 (Determination of Grade for Retirement, Advancement, Separation or Retirement Pay), dated 14 May 1974

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 FSM had prior active duty enlisted service in the U.S. Navy (USN) from 24 March 1942 to 21 November 1945 and U.S. Naval Reserve (USNR) service from 25 March 1947 to 13 January 1948.

3.  He enlisted in the Regular Army (RA) on 14 January 1948 and he continued to serve on active duty through 31 May 1964.

4.  The FSM's DA Form 24 (Service Record) shows in Section 1 (Appointments, Promotions, or Reductions) the entry:

* "MSGT E-7 (T) [Temporary]" and Date of Rank (DOR):  24 January 1953
* "SFC E-6 (T)" and DOR:  1 September 1951
* "SSGT E-6 (P) [Permanent] and DOR:  1 September 1951

5.  Special Orders Number 41, issued by Headquarters, 2nd Battle Group, Control Headquarters, U.S. Army Combat Developments Experimentation Center, Fort Ord, CA, dated 16 December 1957, reduced the FSM from MSGT (E-7) to the temporary grade of SFC (E-6) for inefficiency.  The order shows the FSM was given a DOR of 1 September 1951.

6.  A letter issued by Headquarters, U.S. Army Training Center, Infantry, Fort Ord, dated 14 April 1958, subject:  Complaint of Wrong, shows the FSM's case was reviewed by the commanding general and he determined the FSM's reduction was effected in accordance with existing regulations and with just cause, and the FSM would remain in his current grade and military occupational specialty 133 (Armor Intelligence Specialist).

7.  The FSM's record contains a DD Form 214 that shows he entered active duty on 29 June 1956 and he was honorably discharged for the purpose of immediate reenlistment on 8 February 1962.  He completed 5 years, 7 months, and 10 days of net active service during this period.  It also shows in:


* item 3a (Grade, Rate or Rank) the entry "SFC E-6 (T)"
* item 3b (DOR) the entry "1 Sep 51"

8.  The FSM reenlisted in the RA on 9 February 1962 for a period of 3 years.

9.  Special Orders Number 72, issued by Headquarters, 2nd Recon Squadron, 2nd Armored Cavalry, U.S. Forces, on 11 April 1962, promoted the FSM to
"SSG [Staff Sergeant] (E-6) (P)" with a DOR of 1 September 1951.

10.  Special Orders Number 90, issued by Headquarters, Department of the Army, Washington, DC, on 9 April 1964, released the FSM from active duty in the rank (grade) of SFC (E-6) on 31 May 1964 and placed him on the Retired List in the same rank (grade) of SFC (E-6) effective 1 June 1964.

11.  The FSM's DD Form 214 for the period ending 31 May 1964 shows he was retired under the provisions of Title 10, U.S. Code, section 3914 based on completion of 20 years of active federal service and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  He completed 20 years and 15 days of total active service.  It also shows in:

* item 3a the entry "SSGT (P) E-6"
* item 3b the entry "1 Sep 51"

12.  The applicant's military personnel records do not contain any evidence that shows he was promoted to MSG (E-8) at any time during his military service.

13.  An AGUZ Form 658 (Determination of Grade for Retirement, Advancement, Separation or Retirement Pay), dated 14 May 1974, shows the FSM was promoted to MSGT (E-7) on 24 January 1953 and reduced to SFC (E-6) on
16 December 1957 (per orders).  It also shows:

	a.  he held the grade for 4 years, 10 months, and 22 days; and

	b.  the grade determination was "approved for advancement on the retired list to the grade of MSGT (E-7), now SFC (E-7),"

14.  Letter Orders Number 93,129, issued by the Office of The Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO, dated 15 May 1974, advanced the FSM to the grade of SFC (E-7) on the Retired List, effective 16 May 1974.  The authority cited was Title 10, U.S. Code, section 3964.


15.  A chart of the Enlisted Grade Structure of the Army shows:

* from 21 January 1951 to 31 May 1958, the title for pay grade E-7 was MSGT
* from 1 June 1958 to present, the title for pay grade E-7 has been SFC

16.  Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), 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 (Retirement for Length of Service), 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.

17.  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.

18.  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 that the FSM's records should be corrected to show he was advanced on the Retired List to the rank/grade of MSG/E-8.

2.  Records show the FSM was promoted to MSGT (E-7) on 24 January 1953 and this was the highest grade he attained and served in while on active duty.

3.  He was reduced to SFC (E-6) for inefficiency on 16 December 1957 and given an adjusted DOR of 1 September 1951.

4.  Records show the FSM held the grade of E-6 when he was retired from active duty on 31 May 1964 and he was placed on the Retired List in that grade.  Thus, the retired grade in which the FSM was initially placed on the retired list is correct.


5.  Records show the FSM was advanced on the Retired List to the grade of SFC (E-7), effective 16 May 1974, which was when his active service plus his service on the Retired List totaled 30 years.  The evidence of record also shows that, since 1 June 1958, the title for grade E-7 has been SFC.

6.  There is no evidence the FSM was promoted to MSG (E-8).  Therefore, he is not entitled to be advanced on the retired list to the rank/grade of MSG/E-8.

7.  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)                                         AR20120005285



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005285



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1