BOARD DATE: 22 May 2014
DOCKET NUMBER: AR20130017069
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 (Report of Separation from Active Duty) ending on 30 September 1978 by showing his rank as captain, pay grade O-3.
2. The applicant states he should have been promoted in rank as of
21 September 1988.
3. The applicant provides copies of:
* Orders 117-189, Fort Campbell, KY, dated 27 April 1978
* DD Form 214 ending on 30 September 1978
* Letter, U.S. Army Reserve (USAR) Components Personnel and Administration Center, dated 28 April 1982
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3Â 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. Records show the applicant, with prior Reserve service, enlisted in the Regular Army on 31 July 1957. He attained the rank of specialist six, pay grade E-6 on 18 January 1965.
3. On 1 February 1968, the applicant was commissioned and ordered to active duty. He attained the rank of captain, pay grade O-3 on 1 February 1970.
4. On 4 September 1973, the applicant was released from active duty and transferred to the USAR Control Group (Standby). He had completed 5 years,
7 months, and 4 days of creditable active duty service as a commissioned officer.
5. On 5 September 1973, the applicant enlisted in the Regular Army beginning in the rank of staff sergeant, pay grade E-6. On 7 February 1974, he was promoted to sergeant first class, pay grade E-7.
6. A DA Form 2339 (Application for Voluntary Retirement) dated 7 April 1978 indicates the applicant requested retirement effective 1 October 1978. His request was approved on 26 April 1978 for retirement as a sergeant first class, pay grade E-7.
7. A DA Form 3713 (Data for Retied Pay) dated 18 May 1978 indicates the applicant's retired pay grade was E-7 and his highest pay grade held was O-3.
8. On 30 September 1978, the applicant was retired. He had completed a total of 20 years and 10 days of creditable active duty service. His DD Form 214 effective on that same day shows his retired rank as sergeant first class, pay grade E-7.
9. A letter from the Chief, Retirement Service, Department of the Army, Reserve Personnel, dated 13 January 1989 shows he had been advanced on the retired list effective 7 November 1988 to the rank of captain, pay grade O-3. He was advised to present a copy of this letter to the Identification and Privilege Card Section at the nearest Army installation in order to obtain an identification card.
10. Title 10, U.S. Code, section 3961(b), states unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by subsection (a) who retires other than for physical disability retires in the Regular Army or Reserve grade that he holds on the date of his retirement.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant served on active duty as a commissioned officer for a period of 5 years, 7 months, and 4 days. Because he held the rank of sergeant first class, pay grade E-7 in the Regular Army and did not have a minimum of 10 years active commissioned service at the time of his retirement, he was ineligible to immediately retire in his commissioned pay grade in 1978 with 20 years of active duty service. When he attained a combined period of active and retired service totaling 30 years he was advanced on the retired list to pay grade O-3.
2. The applicant's request to change his DD Form 214 is without merit. His DD Form 214 properly shows his rank as sergeant first class, pay grade E-7. There is no basis for changing this data.
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) AR20130017069
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130017069
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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