IN THE CASE OF:
BOARD DATE: 17 December 2013
DOCKET NUMBER: AR20130005427
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 his orders transferring him to the Retired Reserve be corrected to show him as a first sergeant (1SG) instead of a master sergeant (MSG).
2. The applicant states when he retired he was a MSG but he was a 1SG at one time.
3. The applicant provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 22 December 2003
* DA form 1059 (Service School Academic Evaluation Report), dated
15 June 2002
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. He was born on 29 October 1964. On 10 January 1984, he enlisted in the Regular Army. On 9 January 1987, he was released from active duty and transferred to the U.S. Army Reserve (USAR) where he remained until his retirement. On 1 January 1997, he was awarded military occupational specialty (MOS) 95B (Military Police).
3. On 1 February 2002, he was promoted to MSG in MOS 95B. This MOS was converted to 31B (Military Police) in April 2004.
4. The DA Form 1059 he provided shows he completed the Total Army Training System First Sergeants Course on 15 June 2002.
5. On 21 January 2003, he was ordered to active duty. His active duty orders were not available for review. On 22 December 2003, he was released from active duty and transferred to the 744th Military Police Battalion, Bethlehem, PA.
6. Item 4a (Grade, Rate, or Rank) of his DD Form 214 with a separation date of 22 December 2003 contains the entry "1SG."
7. A memorandum from the U.S. Army Human Resources Command (HRC), dated 28 October 2004, notified the applicant he had completed the required years of qualifying reserve service and was eligible for retired pay on application at age 60 (20-year letter).
8. His records contain a DA Form 2166-8 (NCO (noncommissioned officer) Evaluation Report) (NCOER) for the period from July 2004 to February 2005. His rank is shown as MSG and his primary MOS is shown as 31B. His principal duty title is shown as "Vulnable Assessment NCO" and his duty MOS is shown as 31B.
9. Headquarters, 99th Regional Readiness Command, Coraopolis, PA Orders 05-081-00241, dated 22 March 2005, transferred the applicant to the Retired Reserve effective 21 April 2005. The orders identify him as a MSG.
10. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states a sergeant major E9 or master sergeant E8 who formerly held the title of command sergeant major or first sergeant and who wishes to be shown on the Army of the United States (AUS) Retired List in his or her former title must include the following documents with their application for retired pay:
a. A copy of the appointment to command sergeant major or first sergeant as appropriate. (Service in the duty position of first sergeant while in the grade E7 does not meet this requirement.)
b. A copy of the release order from the command sergeant major or first sergeant status. (Service must have been satisfactory and the person was not released from that status for cause.)
DISCUSSION AND CONCLUSIONS:
1. A member is transferred to the Retired Reserve in the current grade he or she is serving at the time. Based on the applicant's NCOER with an ending date of February 2005, he was serving as a MSG in MOS 31B when he was transferred to the Retired Reserve. Therefore, the grade MSG on his orders, dated
22 March 2005, for transfer to the Retired Reserve on 21 April 2005 is correct.
2. His DD Form 214 with a separation date of 22 November 2003 shows his grade as 1SG. Therefore, he may be entitled to have his grade shown as 1SG on his orders placing him on the AUS Retired List upon application for retired pay at age 60. The applicant is advised he must provide the evidence that is required by Army Regulation 135-180 when he submits his application for retired pay.
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 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) AR20130005427
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ABCMR Record of Proceedings (cont) AR20130005427
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