IN THE CASE OF:	  

		BOARD DATE:	  23 July 2015

		DOCKET NUMBER:  AR20140019220 


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, in effect, correction of his records to show he was placed on the Retired List in the rank of first sergeant (1SG)/pay grade E-8; not master sergeant (MSG)/E-8.  

2.  The applicant states he recently found orders that awarded him military occupational specialty (MOS) 95D5M (Special Agent) as his primary MOS (PMOS) on 1 February 1984.

3.  The applicant provides a copy of his PMOS orders.

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 Regular Army (RA) on 1 November 1965.  Through a series of reenlistments he continued to serve on active duty.

3.  U.S.  Army Military Personnel Center, Alexandria, VA, Orders 145-16, dated 
1 October 1982, promoted the applicant to MSG (E-8) effective 1 November 1982 with a date of rank (DOR) of 4 October 1982.

4.  U.S. Army Regional Personnel Center, Nurnberg, Orders 37-22, dated 
6 February 1984, awarded the applicant PMOS 95D5M effective 1 February 1984.  (The fifth character of the MOS code is the Special Qualification Identifier (SQI) and shows the letter "M" that represents "1SG.")  The standard name line of the orders show his rank as "MSG."

5.  The applicant's DA Form 2-1, in pertinent part, shows in –

* item 17 (Civilian Education and Military Schools) and item 28 (Item Continuation):  U.S. Army, Europe, 2-week 1SG Course (1982)
* item 18 (Appointments and Reductions):  MSG, DOR 4 October 1982
* item 35 (Record of Assignments) –

* Duty MOS (DMOS) 95D4O, Special Agent, 2nd Region, U.S. Army Criminal Investigation Division Command, Germany, from 1 June 1983 through 14 March 1984
* DMOS 95D5O, Chief Investigative Support, 6th Region Criminal Investigation Division, Fort Riley, KS, from 17 April 1984 through 
30 November 1985

6.  Three DA Forms 2166-6 (Enlisted Evaluation Reports) spanning the period from June 1983 through July 1985 show the applicant successfully served as Chief, Investigative Support, in DMOS 95D5O.  The Description of Duties of all three reports show, in pertinent part, "Principle senior NCO [noncommissioned officer] performing First Sergeant-type duties…"

7.  A DA Form 2339 (Application for Voluntary Retirement), prepared and signed by the applicant on 30 November 1984, shows he requested retirement effective 1 December 1985.  It also shows he entered in –

* item 5 (Current Grade, Pay Grade Effective Date, and MOS):  "MSG E8, 
1 November 1982, 95D5M"
* item 6 (Highest Grade Served on Active Duty and Branch of Service):  "MSG, U.S. Army"


8.  His DD Form 214 shows he was honorably released from active duty on
30 November 1985 for the purpose of retirement.  At the time, he had completed 20 years and 1 month of total active service.  It also shows in –

* item 4a (Grade, Rate or Rank):  "MSG"
* item 4b (Pay Grade):  "E-8"
* item 11 (Primary Specialty Number, Title, and Years and Months in Specialty) [in part]:  "95D5M, Special Agent, 7 years and 2 months
* item 12 (Record of Service), block h (Effective Date of Pay Grade):
1 November 1982

9.  Headquarters, 1st Infantry Division (Mechanized), Fort Riley, KS,
Orders 247-4, dated 27 December 1984, released the applicant from active duty on 30 November 1985 and placed him on the Retired List, effective 1 December 1985, in the grade of rank of "MSG."  The standard name line of the orders show his rank as "MSG."

10.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribes policy and procedures for career management of Army enlisted Soldiers.  Chapter 2 (Personnel Classification), paragraph 2-42, shows the authority for lateral appointment of NCOs.  It states, in pertinent part, that a change of duty for NCOs in pay grade E-8 requires a lateral appointment to or from MSG or 1SG.

11.  Army Regulation 635-200 (Personnel Separations), in effect at the time, prescribes the policy and procedure for the separation of enlisted personnel.  Chapter 12 (Retirement for Length of Service), paragraph 12-17 (Grade Title on Retired List of former 1SGs) shows that NCOs holding the grade of MSG at retirement, whose records show successful service as a 1SG, will be placed on the Retired List in the grade title 1SG.  The criteria for such placement on the Retired List is that the Soldier must –

* be serving in and retiring in the grade of MSG
* possess SQI "M"
* have served as a 1SG in the grade of MSG

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was placed on the Retired List in the rank of 1SG/E-8 because he was issued orders awarding him PMOS 95D5M.

2.  The validity of the orders when they were issued awarding the applicant SQI "M" is not in question.  However, the evidence of record fails to show the applicant was laterally appointed to 1SG.  In addition, while the evidence of record shows the applicant served as Special Agent and Chief, Investigative Support, and that he performed "1SG-type duties" from June 1983 through July 1984, this is insufficient as a basis to show that he served as a 1SG.

3.  The evidence of record fails to show the applicant served in an authorized 1SG position.

   a.  His request for voluntary retirement shows he confirmed that the highest grade he served on active duty was MSG.  

   b.  His final DD Form 214 reflects his correct rank/pay grade as MSG/E-8.  

   c.  Orders placed him on the Retired List in the grade of rank of MSG.

4.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis for granting the requested relief.

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)                                         AR20140019220



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ABCMR Record of Proceedings (cont)                                         AR20140019220



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