BOARD DATE: 30 June 2015
DOCKET NUMBER: AR20140020564
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) by showing his rank as first sergeant (1SG).
2. The applicant states he served as a 1SG in all of his duty positions since 1987. He also says he attended the First Sergeant Course. He desires to have his tombstone read 1SG as his rank.
3. The applicant provides copies of:
* Orders 289-22, Lateral appointment to 1SG, dated 16 October 1987
* Orders, Army Good Conduct Medal, for period ending 29 February 1988
* Orders 77-36, Military Occupational Specialty (MOS), dated 17 March 1988
* Permanent Orders 169-3, Army Achievement Medal, dated 11 October 1988
* Certificate of Achievement, dated 30 January 1990
* Orders 142-550, Retirement as 1SG, dated 4 October 1993
* DA Form 638 (Recommendation for Award), dated 5 November 1993
* Certificate of Retirement, dated 1 April 1994
* Certificate of Appreciation, undated
* State of Texas, Annual Special Personnel Contract, Probationary, for the period 1 July 1994 to 30 June 1995
* Photocopy of Retired Identification Card, illegible
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. Orders Number 15-23, dated 20 February 1987, announced the applicant's promotion to master sergeant (MSG), pay grade E-8 effective 1 April 1987, with a date of rank of 7 March 1987. Subsequent orders, dated 16 October 1987, laterally appointed the applicant to 1SG.
3. Orders 77-36, dated 17 March 1988, announced the applicant's award of MOS 11B5M indicating he was an infantryman in pay grade E-8 with the special skill qualifier (SQI) of "M" designating him as a 1SG.
4. A DA Form 2166-7 (Noncommissioned Officer Report) for the period ending December 1993, shows the applicant performed as a chief instructor at the University of Texas, in the rank of MSG, pay grade E-8.
5. Orders 142-550, dated 4 October 1993, announced the applicant's retirement in the rank of 1SG.
6. A DA Form 638, dated 5 November 1993, initiated at the University of Texas, identifies the applicant as a MSG.
7. The applicant's DD Form 214 ending on 31 March 1994, shows the applicant's rank on that day as MSG.
8. The Certificate of Retirement, dated 1 April 1994, and the Certificate of Appreciation, undated, as provided by the applicant, shows his rank as 1SG.
9. Army Regulation 635-5 (Separation Documents) provides detailed instructions for completing separation documents, including the DD Form 214. It provides that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. It requires that the rank of the individual at the time of separation from active duty be entered in the appropriate block on the DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his DD Form 214 should be corrected by showing his rank as 1SG because that was the rank he held at the time.
2. The evidence of record clearly shows that the applicant served in the rank and pay grade of 1SG/E8 for a period time leading up to his last duty assignment as an instructor. However, as an instructor, it is apparent that he was laterally appointed to MSG, the rank he held on his last day of active duty. Therefore, this rank is properly entered on his DD Form 214.
3. A review of his retirement orders shows that he was placed on the Retired List in the rank of 1SG. This is further supported by the rank of 1SG being shown on his retirement certificates. Accordingly, there appears to be no error or injustice in this case.
4. Regarding the applicant's desire to have his tombstone show his rank as 1SG, he, or his heirs have the option of providing a copy of this Record of Proceedings and his retirement orders as evidence of his highest rank held.
5. In view of the above, the applicant's request should be denied.
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) AR20140020564
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140020564
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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