IN THE CASE OF:	  

		BOARD DATE:	  22 May 2014

		DOCKET NUMBER:  AR20130015927 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he retired in the rank/grade of first sergeant (1SG)/E-8, versus master sergeant (MSG)/E-8, and was awarded the Meritorious Service Medal (MSM). 

2.  The applicant states his orders and identification (ID) card were corrected at Fort Hood, TX, before he retired and he was advised that his DD Form 214 would be corrected.  The MSM is also not shown on his DD Form 214.  He sent in paperwork to get his DD Form 214 corrected and apparently they took so long for the first correction, he just kept waiting and then forgot about it.  He is disabled and when trying to get his estate in order he remembered this DD Form 214 hadn't been corrected.

3.  The applicant provides copies of Orders Number A-51-13, DD Form 214, 
DD Form 215 (Correction to DD Form 214), Certificate of Appreciation, and U.S. Uniformed Services ID card.

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 applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 11 June 1968.  He was discharged from the DEP on 29 August 1968 and he enlisted in the Regular Army on 30 August 1968.  

3.  His record contains the following:

* Orders Number 140-10, issued by the U.S. Army Military Personnel Center, dated 30 November 1987, promoting him to MSG/E8 effective 1 January 1988 with a date of rank of 21 December 1987
* Orders Number 55-16, issued by the 546th Personnel Service Company, Fort Hood, dated 22 March 1988, terminating his rank of 1SG and appointing him as a MSG with a date of rank of 21 December 1987
* DA Form 2339 (Application for Voluntary Retirement), dated 1 February 1989, which stated he served satisfactorily as a 1SG/E8 from 21 December 1987 through 22 March 1988

4.  He provided a copy of and his record contains Orders Number A-51-31, issued by the Headquarters, III Corps and Fort Hood, dated 17 March 1989, retiring him in the rank of 1SG effective 31 December 1989.

5.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

* Item 9 (Awards, Decorations, and Campaigns) – the same awards as listed on his DD Form 214
* Item 17 (Civilian Education and Military Schools – does not show he completed the First Sergeant Course (FSC)
* Item 35 (Record of Assignments) – he served as a 1SG from 1 January 1984 through 1 March 1988 and the Skill Qualification Identifier (SQI) "M"

6.  His DA Form 3713 (Data for Retired Pay), dated September 1989, shows his active duty grade as MSG, his retired grade as 1SG, and the highest grade attained as 1SG.

7.  He was honorably retired on 31 December 1989.  His DD Form 214 for the period ending 31 December 1989 does not show he completed the FSC.  This DD Form 214 lists his rank as MSG/E8 with an effective date of 1 January 1988 and it does not list the MSM as an authorized award.
8.  His record contains the following:

* PO Number A-36-A, issued by Headquarters, III Corps and Fort Hood, dated 19 March 1990, awarding him the MSM for the period 1 January 1979 through 31 December 1989
* PO Number A-37-1, dated 20 March 1990, amending the period of service for the MSM to 1 January 1989 through 31 December 1989 
* DD Form 215, dated 14 May 1991, adding the MSM to his 1989 
DD Form 214

9.  He also provided copies of a Certificate of Appreciation and his ID card, issued on 20 March 2008, which both list his rank as 1SG.

10.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty.  The regulation stated the DD Form 214 would list the active duty grade or rank and pay grade at time of separation and the effective date for the grade shown and all awards for all periods of service.

11.  Army Regulation 635-200 (Enlisted Separations), in effect at the time, set the policies for the orderly administrative separation of Soldiers for a variety of reasons.  The regulation states retirement normally would be in the regular grade the Soldier held on the date of retirement.  The regulation also stated an noncommissioned officer, holding the grade of MSG at retirement and whose record shows successful service as a 1SG, will be placed on the Retired List (emphasis added) in the grade title 1SG.  The following are the only criteria for such placement on the Retired List:

* The Soldier must be serving in and retiring in the grade of MSG
* The Soldier must possess (SQI) "M"
* The Soldier must have served as a 1SG in the grade of MSG; however, no minimum time period is specified  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant completed the FSC and was awarded SQI "M."  However, he stopped serving as a 1SG on 22 March 1988.  He was serving as a MSG at the time of his retirement.  Therefore, he is not entitled to correction of his DD Form 214 to show his rank as 1SG. 


2.  Amended orders were issued on 20 March 1990 awarding him the MSM for the period of service from 1 January 1980 through 31 December 1989.  A 
DD Form 215 was issued on 14 May 1991 adding this award to his 1989 
DD Form 214.  No further correction is required.

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)                                         AR20130015927





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ABCMR Record of Proceedings (cont)                                         AR20130015927



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