IN THE CASE OF:	  

		BOARD DATE:	  1 October 2015

		DOCKET NUMBER:  AR20140021501 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as master sergeant (MSG), his pay grade as E-8, and his date of rank (DOR) as 11 March 1985.

2.  The applicant states he did not know he could request a change to his DD Form 214.  When he was reissued a replacement DD Form 2 (U.S. Uniformed Services (Retired) Identification (ID) Card), his rank changed.  At that time he was informed he should try to get his DD Form 214 changed.  He adds, "I always got paid as [an] E-8."  He wants his headstone to reflect his correct rank so his grandchildren will be proud of his military service.

3.  The applicant provides copies of his:

* DD Form 214
* DD Form 2
* DFAS-CL 7220 (Retiree Account Statements)

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 on 8 June 1966.  He continued to serve on active duty through a series of reenlistments.  He was:

* promoted to: 

* sergeant first class (SFC)/pay grade E-7 with a DOR of 21 June 1977, effective 1 July 1977
* MSG/pay grade E-8 with a DOR of 11 March 1985, effective 1 April 1985

* awarded military occupational specialty (MOS) 39D (Decentralized Automated Service Support System Sergeant)
* assigned to the 240th Supply and Services Company, 751st Maintenance Battalion, Germany, on 1 July 1985
* laterally appointed to first sergeant (1SG)/pay grade E-8 on 9 July 1985

3.  Headquarters, 1st Armored Division, General Court-Martial (GCM) Order Number 48, dated 5 June 1987, shows the applicant was convicted at a GCM and sentenced on 26 March 1987 to reduction to the grade of E-1 (private (PVT)) and to be dishonorably discharged from the service.  The GCM Convening Authority (GCMCA) approved the sentence, except for the dishonorable discharge, and ordered it executed.

4.  He was transferred to the Special Processing Company, Personnel Control Facility, Fort Knox, KY, on 16 July 1987.

5.  U.S. Army Court of Military Review, Memorandum Opinion, dated 23 November 1987, shows the court found the court-martial lacked jurisdiction (i.e., one of the enlisted members sitting on the applicant's court-martial was not detailed to sit on the court-martial by the convening authority and, as such, was an interloper).  Thus, the court-martial lacked jurisdiction and was nullified.  The findings of guilty and sentence were set aside.  The court added that another trial may be ordered by the same or a different convening authority.

6.  Headquarters, 1st Armored Division, GCM Order Number 101, dated 7 October 1988, shows the applicant was convicted at a second GCM and sentenced on 10 April 1988 to forfeiture of $447.00 pay per month for 12 months and reduction to the grade of E-1/PVT.  The GCMCA approved only so much of the sentence as provided for reduction to the grade of E-1 and ordered it executed.

7.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointment and Reductions) the following entries:

* SFC DOR 21 June 1977
* MSG DOR 11 March 1985
* First Sergeant (1SG) DOR 11 March 1985, effective date 9 July 1985
* PV1 DOR 10 April 1988

8.  A DA Form 2339 (Application for Voluntary Retirement), dated 7 November 1988, shows the applicant requested a retirement date of 1 December 1988.  It also shows the following entries:

* item 5 (Current Grade, Pay Grade) "PV1 E-1, 23 November 1987"
* item 6 (Highest Grade Served on Active Duty and Branch of Service) "1SG E-8, U.S. Army"

9.  A DA Form 3713 (Data for Retired Pay), dated 8 November 1988, shows the following entries:

* item 2 (Active Duty Grade) "PV1 E-1"
* item 8 (Highest Grade Attained) "1SG E-8"
* item 10 (Retired Pay) "1SG E-8"
* item 36 (Remarks) "Member attained 20 years’ active Federal service on 17 June 1986.  Soldier[']s retired pay based on upon grade reached when soldier became retirement eligible (20 years) 17 June 1986, per Comptroller General Decision B-22150, May 4, 1987."

10.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, Orders 215-28, dated 7 November 1988, retired him on 30 November 1988 and placed him on the Retired List effective 1 December 1988 in the rank of "First Sergeant."  The standard name line in the orders shows his rank as "PV1."

11.  A corrected copy of Headquarters, U.S. Army Armor Center and Fort Knox, Orders 215-28, dated 7 November 1988, retired him on 30 November 1988 and placed him on the Retired List effective 1 December 1988 in the rank of "Private E1."  The standard name line in the orders shows his rank as "PV1."

12.  The applicant's DD Form 214 shows he was honorably retired on 30 November 1988.  He completed 22 years, 5 months, and 13 days of total active service.  It shows the following entries:

* item 4a (Grade, Rate or Rank) – "PV1"
* item 4b (Pay Grade) "E1"
* item 12h (Record of Service – Effective Date of Pay Grade) – "87  06  05 [5 June 1987]"
* item 18 (Remarks) – "Retired from Service on Temporary Records"

13.  The applicant provided the following documents in support of his application:

	a.   his DD Form 2 issued on 25 June 2013 that shows his rank/pay grade as "MSG/E8" and an ID card expiration date of "Indefinite"; and

	b.  two Retiree Account Statements with effective dates of 2 December 2011 and 3 December 2013, that show the applicant's rank as "MSG" and that he is receiving retired pay at the rate for MSG/E-8.  He also is in receipt of a Department of Veterans Affairs waiver.

14.  Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active duty service or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.

	a.  The purpose of a separation document is to provide the individual with documentary evidence of his or her military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.

	b.  Chapter 2 contains guidance for preparation of the DD Form 214.  Table 
2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214.  The instructions show for:

* item 4a and item 4b, enter active duty grade of rank and pay grade at time of separation
* item 12h, enter the effective date for pay grade

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided the authority for the separation of Soldiers from the Active Army.  Chapter 12 (Retirement), paragraph 12-3 (General Provisions of Laws Governing Retirement), states retirement will be in the Regular or Reserve grade the member holds on the date of retirement in accordance with Title 10, U.S. Code, section 3961.

16.  The Comptroller General of the United States Decision B-225150 (Retired Pay Calculation after Retirement Following a Reduction in Grade), dated 4 May 1987, states in effect that under Title 10, U.S. Code, section 1401a(f) a member of the armed forces who retires after 1 January 1971 may have his retired pay calculated on the basis of the pay rates in effect and applicable to him at any point in time after he became eligible to retire.  A member receives the benefit of this law even if he is reduced in grade, following his eligibility to retire, for disciplinary reasons including a reduction in grade pursuant to a court-martial sentence.  (Title 10 was later revised to prevent this circumstance.)

17.  Title 10, U.S. Code, section 3961, provides the legal authority for the retired grade of Army personnel on the Retired List.  It states that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army who retires other than for physical disability retires in the Regular or Reserve grade he or she holds on the date of his or her retirement.

18.  Title 10, U.S. Code, section 3964, provides that each retired member of the Army who is retired with less than 30 years of active service is entitled, when his or her active service plus his or her service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he or she served on active duty satisfactorily as determined by the Secretary of the Army.  This section applies to warrant officers of the Army; enlisted members of the Regular Army, and Reserve enlisted members of the Army who, at the time of retirement, are serving on active duty.

19.  The Army Review Boards Agency, Army Grade Determination Review Board (AGDRB) website (http://arba.army.pentagon.mill/agdrb-overview.cfm) shows how the AGDRB determines the highest grade in which a Soldier served satisfactorily.  In cases involving advancement on the Retired List for enlisted Soldiers who previously held a higher grade after 30 years of combined service on the Active Duty and Retired Lists, a "satisfactory" determination of service at a particular grade has pay implications.  The website provides regulatory and administrative information along with application procedures.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show he retired from active duty in the grade of E-8 because he was issued a military retiree ID card with the rank/grade of "MSG/E8," he was always paid as an E-8, and he is now receiving retired pay based on pay grade E-8.
2.  The evidence of record shows the applicant was promoted to MSG/E-8 with a DOR of 11 March 1985 effective 1 April 1985 and he was laterally appointed to 1SG/E-8 on 9 July 1985.

3.  On 10 April 1988, he was convicted by GCM and reduced to the grade of PV1/E-1.  Item 4a and item 4b show his correct rank and grade; however, item 12h shows an incorrect effective date of his pay grade to PVT.  Based on this administrative error, it would be appropriate to correct item 12h of his DD Form 214 to show 10 April 1988.

4.  Records show the active duty retirement orders issued on 30 November 1988 initially placed him on the Retired List effective 1 December 1988 in the rank of 1SG/E-8.  However, records also show a corrected copy of these orders was issued that placed him on the Retired List effective 1 December 1988 in the rank of PV1/E-1.  At the time of his retirement, a Comptroller General Decision allowed him to collect retired pay in the grade of E-8 because he had attained 20 years’ active Federal service on 17 June 1986.  It is noted this date is prior to his conviction and subsequent reduction by a GCM.  However, this decision does not effect his rank and grade on his last date of active duty.  Thus there is an insufficient evidentiary basis for granting the requested relief.

5.  The evidence of record shows the applicant was potentially eligible for advancement on the Retired List to the highest grade satisfactorily held upon attainment of 30 years of total active service and retired service.  However, there is no evidence indicating he applied to the AGDRB for advancement on the Retired List.

	a.  A calculation of his service shows the following:

	30  00  00		total time (years) active/retired service required
	- 22  05  13		total active service creditable for retirement
	= 07  06  17		7 years, 6 months, and 17 days (additional required)

	1988  11  30		date retired from active duty
	 +    07  06  17		additional service required on Retired List
	  =     95  17  47		which equates to "96  06  17" or 17 June 1996

	b.  Thus, he was/is eligible to apply for advancement on the Retired List as of 17 June 1996.

6.  The applicant is advised that he may apply to the AGDRB for a determination of "satisfactory" service in a higher grade and advancement on the Retired List.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the current entry from item 12h of his DD Form 214 for the period ending 30 November 1988 and adding the entry "1988  04  10 [10 April 1988]."

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting his DD Form 214 to show his rank and pay grade as MSG/E-8.



      ___________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)                                         AR20140021501



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ABCMR Record of Proceedings (cont)                                         AR20140021501



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