IN THE CASE OF:	  

		BOARD DATE:  12 September 2013

		DOCKET NUMBER:  AR20130005197 


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 correction of her Army Military Human Resource Record (AMHRR) to show she retired as a sergeant major (SGM), pay 
grade E-9.

2.  The applicant states she believes she should be retired at the highest grade that she held which was SGM/E-9.  She asks to be advanced on the retired list to SGM/E-9 because she served in this rank and pay grade in the U.S. Army Reserve (USAR) under the provisions of Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service), paragraph 2-11.  Although she retired on 26 May 1976 in the rank of master sergeant, pay grade E-8, she previously held the grade of E-9 in the USAR from 24 October 1965 to 1 October 1970.  She contends that she was reduced to pay grade E-8 based on her chain of command realizing that the position of E-9 was authorized only for males.

3.  The applicant provides copies of:

* Letter of support from the Milwaukee County Veterans Service Office, dated 13 March 2013
* Letter from her physician at Lakeshore Medical Clinic, dated 29 March 2013
* Special Orders Number 46, 103rd Command Headquarters (Divisional), Des Moines, IA, dated 24 October 1965
* Promotion Certificate, dated 24 October 1965


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.  After having had prior service, the applicant enlisted in the USAR on 1 April 1950.  She was promoted to master sergeant, pay grade E-7 with a date of rank of 23 January 1957.  She was promoted to master sergeant, pay grade E-8 with a date of rank of 1 May 1963.

3.  Special Orders Number 46, dated 24 October 1965, as provided by the applicant, announced her appointment to SGM/E-9 by the Commander, 103rd Command Headquarters (Divisional), Des Moines, IA.  The authority for this appointment was Army Regulation 140-158 (Enlisted Personnel Classification, Promotion and Reduction), paragraph 4.  A promotion certificate dated on this same day also announces her appointment as a SGM/E-9 in the USAR.

4.  Her DA Form 20 (Enlisted Qualification Record) as audited on 22 March 1974, shows the applicant's principal duty as a SGM from 15 July 1965 to 
30 September 1970 with the 452nd General Hospital.  On 1 October 1970, her duty position was construction operations sergeant with the 961st Engineer Battalion, Construction.  This form also shows her last promotion was to master sergeant, pay grade E-8 with a date of rank of 1 May 1963.

5.  Her DD Form 4 (Enlistment Contract - Armed Forces of the United States) signed by the applicant on 17 October 1973, indicates she had enlisted for a 3-year period in the USAR.  Her rank at the time was master sergeant, pay grade E-8.

6.  Her records contain an Eligibility for Retired Pay Worksheet, dated 8 August 1973, which was updated by pen and ink in 1975.  This document indicates that as of 9 April 1975, the applicant had 25 qualifying years for a non-regular retirement.  Her rank on this document is shown as master sergeant.

7.  There are no available documents relating to her retirement processing or status.

8.  Army Regulation 135-180 provides at paragraph 2-11, that for Soldiers who were transferred to the Retired Reserve or discharged prior to 25 February 1975, their retired grade will be the grade the Soldier held at time of transfer to the Retired Reserve or discharge, unless the Soldier held a higher grade at least 185 days or 6 calendar months on active duty or in an active Reserve status as an enlisted Soldier.   For Soldiers who were transferred to the Retired Reserve or discharged on or after 25 February 1975, their retired grade will be the grade the enlisted Soldier held while on active duty or in an active Reserve status for at least 185 days or 6 calendar months.

9.  The legal "Doctrine of Laches" bars a claimant from receiving relief where the claimant's delay in pursuing the claim has operated to the prejudice of the opposing party.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her AMHRR should be corrected to show she retired as a SGM/E-9.

2.  The applicant argues that she was promoted to SGM/E-9 in October 1965 but was reduced on 1 October 1970 because the position required a male Soldier.  Her explanation implies that she was erroneously promoted because there was no qualifying position for her in the rank of SGM/E-9.

3.  Available records clearly show she held positions as a SGM from 15 July 1965 to 30 September 1970 with the 452nd General Hospital.  Records also show that she was reassigned to an engineer battalion on 1 October 1970 where she held a position of construction operations sergeant.

4.  There are no available records concerning the applicant's reduction from SGM/E-9.  Her DA Form 20 does not show any evidence of being promoted above master sergeant/E-8, or subsequently reduced.  There is no documentation available showing "de facto" status for the promotion to preclude an unfair loss of pay.

5.  It has been approximately 43 years since the applicant was reduced from SGM/E-9 to MSG/E-8.  Available records are inadequate to confirm or deny the applicant's contention that she lost the position and rank due to a requirement at the time for SGM/E-9 to be male.  Regrettably, due to the passage of time pertinent information has been lost or destroyed; therefore, favorable consideration of the applicant's request is barred by the doctrine of laches.

6.  Unfortunately, in view of the above and due to the passage of time and unavailability of documentation, a definitive determination can no longer be made in her case.  Therefore, her 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)                                         AR20130005197





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ABCMR Record of Proceedings (cont)                                         AR20130005197



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