IN THE CASE OF:	   

		BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130006611 


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 reconsideration of his previous request for advancement to the grade of master sergeant (MSG/E-8) on the Retired List.

2.  The applicant states:

   a.  He applied to the Army Grade Determination Review Board (AGDRB) on 6 July 2010 after being made aware of the opportunity to apply to have his rank of MSG restored.  He was subsequently informed by letter, dated 15 September 2010, that the AGDRB was unable to act on his request.  A subsequent letter, dated 22 November 2011, stated that the action had been sent to the Army Board for Correction of Military Records (ABCMR) which returned the request without action due to the absence of his military records (signed out to another agency).  He believes the records were in the possession of the Department of Veterans Affairs as he was being reviewed during that period for medical problems related to his service.

   b.  This review has been completed to the best of his knowledge and a final decision was rendered.  He was not aware at the time of his submission to the AGDRB that his service records would be included in his medical files.  On 28 February 2012, after a request for a records search by the Defense Finance and Accounting Service (DFAS), he submitted a second application to the ABCMR with copies of his DFAS pay records showing he was paid as a MSG for the period from April to July 1992.  It was determined that these records did not meet the standard of evidence necessary to substantiate his promotion was actually consummated (as noted in paragraph 9 of the Record of Proceedings (ROP), dated 25 September 2012).

   c.  Based on the September 2012 ROP, he initiated an aggressive search for evidence of his promotion to MSG.  He finally found a copy of the promotion orders, dated 27 February 1992, in the microfiche of the U.S. Army Enlisted Promotion Board, on file at the National Personnel Records Center.  In response to the ABCMR’s letter of decision, paragraph 6, 7, and 9, he wishes to submit a third request for review with Orders Number 34-3, dated 27 February 1992.

   d.  He also wishes to reiterate that he was told by his personnel office at Fort Lewis, WA, that he could retire and maintain his E-8 rank based on messages from Headquarters, Department of the Army, regarding service waivers of relief from service requirements on a Reduction of Force following Operation Desert Shield/Storm.  Once he was notified that he was not able to be retired, he had already committed to retirement.  Please note that he did not try to cry foul, accepted the reduction in rank, and began his second life.  

   e.  Upon being made aware of the ability to request reconsideration after 30 years, however, he began his efforts to regain his status as a retired MSG.  If service members separated with reduction in rank for disciplinary problems can obtain reinstatement through the 30-year service standard, he hopes that a Soldier whose only fault was being caught in an administrative fog would receive equal consideration.  His only regret was in losing the stripes he had served so long to obtain.  He was required to accept a reduction in grade at retirement to sergeant first class (SFC/E-7) or place further changes on an already-challenged family.  He did not begrudge the loss of pay, but the loss of the stripe was a painful sacrifice.  He would truly like to sew it back on to his old uniform.

   f.  He believes the personnel office at Fort Lewis at the time of his retirement simply erased his promotion from his field 201 file which was subsequently filed with Enlisted Records following his retirement.  It should be noted that they also failed to include his Liberation of Kuwait and the Defense of Saudi Arabia awards on his DD Form 214.  In fact they are still not listed on his DD Form 214.

   g.  For more than 21 years he served in the Army with dedication and pride.  He served from Southeast Asia to Southwest Asia and never counted the sacrifices by himself and his family.  In the end a bureaucratic miscommunication required he give up that which he had earned.  Surely current policy would allow him an exception to the regulation under those conditions.

3.  The applicant provides copies of Orders Number 34-3 and ABCMR Docket Number AR20120005019, dated 25 September 2012.
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120005019, on 25 September 2012.  

2.  The applicant submitted a copy of Orders Number 34-3 promoting him to MSG/E-8.  This is considered new evidence and will be considered by the Board.

3.  The applicant initially enlisted in the Regular Army on 16 November 1970.  He completed training and was awarded several military occupational specialties, his last being 00R (recruiter/retention noncommissioned officer).  He served continuously on active duty in various assignments and through several reenlistments.  

4.  Orders Number 110-35 were issued by the U.S. Army Military Personnel Center, on 22 August 1984, promoting him to SFC/E-7 with an effective date and date of rank of 1 October 1984.  

5.  On 31 January 1992, he submitted a request for voluntary retirement in the rank of SFC/E-7 with a desired retirement date of 1 July 1992.  He completed a DA Form 3713 (Data for Retired Pay) listing his active duty grade as SFC/E-7.

6.  He provided a copy of Orders Number 34-3 issued by the U.S. Army Total Personnel Command, on 27 February 1992, promoting him to MSG/E-8 with an effective date and date of rank of 1 April 1992.  

7.  His record contains three Leave and Earnings Statements (LESs) which show between the months of May through July 1992 he was paid in the rank of MSG/E-8.

8.  Orders Number 034-551 were issued by the First Personnel Group, on 3 February 1992, releasing him from active duty and retiring him in the rank of SFC/E-7 effective 30 June 1992.  

9.  He was issued a DD Form 214 crediting him with completing a total of 21 years, 7 months, and 15 days of net active service. 

10.  His record is void of any orders or other documents that show he was reduced from pay grade E-8 to E-7 while serving on active duty.


11.  Title 10, U.S. Code, section 3964, provides the legal authority for advancement of enlisted members on the Retired List.  It states that enlisted member 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.

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides for the promotion and reduction of enlisted Soldiers.  Chapter 1 identifies Soldiers who are in a non-promotable status.  Soldiers in the rank of specialist through master sergeant are non-promotable if they have an approved retirement. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant provides orders that confirm he was promoted to MSG/E-8 with an effective date and date of rank of 1 April 1992.  His LES's show he received pay in the pay grade E-8 from 1 May through 31 July 1992.  He was issued orders releasing him from active duty and retiring him in the rank of E-7 effective 30 June 1992.  He was placed on the Retired List on 1 July 1992 in that grade.

2.  The applicant submitted his request for voluntary retirement in the rank of SFC/E-7, in January 1992, with a desired retirement date of 1 July 1992.  Once his retirement request was approved, he was a non-promotable status.  This means the promotion orders that were issued on 27 February 1992 promoting him to MSG effective 1 April 1992 were either issued in error or were subsequently revoked.  He may have received pay as an E-8, but it appears he may have been in a de facto status.

3.  In accordance with Title 10, U.S. Code, section 3964, an enlisted member may be advanced on the Retired list to the highest grade in which they served on active duty satisfactory at the 30-year mark.  In the applicant's case the highest grade in which he served on active duty satisfactory was SFC/E-7, not MSG/E-8. Regrettably, he does not meet the criteria to retire in the higher grade. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20120005019, dated 25 September 2012.




      ____________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)                                         AR20130006611





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ABCMR Record of Proceedings (cont)                                         AR20130006611



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