IN THE CASE OF:
BOARD DATE: 11 July 2013
DOCKET NUMBER: AR20120022344
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 the date he was placed on the retired list be changed from 17 May 2008 to 17 May 2007.
2. The applicant states that he should be advanced on the retired list effective
16 May 2007, the date shown in item 6 (Reserve Obligation Termination Date) of his 31 May 1994 DD Form 214 (Certificate of Release or Discharge from Active Duty). The incorrect date causes one year of lost retirement pay.
3. The applicant provides copies of:
* his 31 May 1994 DD Form 214
* his 26 January 1994 retirement orders
* his 22 August 2007 letter to the Army Review Boards Agency (ARBA), St Louis, Missouri
* a 29 November 2007 letter from the U.S. Army Human Resources Command (HRC)
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 applicant's record shows he:
a. enlisted in the Regular Army (RA) on 29 June 1973. He was discharged on 19 December 1977 for the purpose of immediate reenlistment.
b. reenlisted in the RA on 20 December 1977, and served until he was discharged on 17 December 1982, as a staff sergeant (SSG)/E-6. His DD Form 214 shows he had completed a total of 9 years, 5 months and 19 days of active duty service.
c. reenlisted in the RA on 6 November 1987, and served until he retired on
31 May 1994, as a sergeant/E-5. His DD Form 214 shows he had completed
6 years, 6 months, and 25 days of active duty service for the period covered by the DD Form 214 and a total on 16 years and 14 days of active duty service with 3 years of inactive service.
3. In his 22 August 2007 letter to ARBA he requested to be advanced on the retired list to the highest grade he satisfactorily held while on active duty as he had a total of 30 years of active service and time on the retired list. He indicated he previously held the grade of E-6 while on active duty.
4. The 29 November 2007 HRC letter notified the applicant that he had been advanced on the retired list effective 17 May 2008, to the grade of SSG/E-6.
5. Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. It states for item 6: this refers to the completion date of the statutory service obligation incurred by all personnel on initial enlistment or appointment in the Armed Forces.
6. Title 10 of the U.S. Code, section 3964, provides the legal authority for advancement on the Retired List. It states, in pertinent part, that retired Soldiers are entitled, when their active service plus service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served while on active duty as determined by the Secretary of the service concerned.
DISCUSSION AND CONCLUSIONS:
1. Item 6 of the DD Form 214 refers to the completion date of the statutory service obligation incurred by all personnel on initial enlistment or appointment in the Armed Forces. That entry on his DD Form 214 should have read 00 00 00.
2. The 29 November 2007, HRC letter indicated the applicant was to be advanced on the retired list effective 17 May 2008.
3. The evidence shows the applicant completed a total of 16 years and 15 days of active duty service on his 31 May 1994 retirement. He needed to be on the retired list for an additional 13 years, 11 months, and 15 days to complete a combined total of 30 years. He was correctly advanced on the retired list effective 17 May 2008.
4. In view of the above, the applicant's request should be denied.
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) AR20100013465
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120022344
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