IN THE CASE OF:  	  

		BOARD DATE:  22 September 2015  	  

		DOCKET NUMBER:  AR20150000429 


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), retirement orders, and retired identification card to show he retired as a first sergeant (1SG)/E-8.

2.  The applicant states:

	a.  He retired as a master sergeant (MSG)/E-8, but should have retired as a 1SG.

	b.  He was laterally appointed to 1SG and he served honorably as a 1SG.

	b.  The highest rank/grade he held is 1SG.

3.  The applicant provides:

* DA Form 4187 (Personnel Action)
* Enlisted Record Brief (ERB)
* Noncommissioned Officer Evaluation Report (NCOER)
* Army/American Council on Education Registry Transcript System (AARTS)
* DD Form 214
* retirement orders
* retired identification card
* lateral appointment summary

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 5 August 1987.  He remained on active duty through continuous reenlistments.

3.  He provided his AARTS which shows he completed the 1SG course on 1 March 2003 and was awarded special qualification identifier (SQI) "M."

4.  He was promoted to the rank MSG on 1 May 2003.

5.  He provided:

	a.  a DA Form 4187, dated 13 March 2004, which shows he was laterally appointed from MSG to 1SG effective 5 March 2004;

	b.  his ERB which shows his duty title as 1SG with SQI "M" from 5 March 2004 to 16 October 2004;

	c.  his NCOER covering the period April 2004 through October 2004 which shows his principal duty title as 1SG with SQI "M";

	d.  his lateral appointment summary which shows his rank was 1SG from 1 May 2003 to 1 April 2005; and

	e.  his retired identification card that shows his rank as MSG.

6.  Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Orders 260-0013, dated 17 September 2007, released him from active duty on 31 August 2008 and placed him on the Retired List in the rank of MSG effective 1 September 2008.

7.  On 31 August 2008, he retired in the rank of MSG/E-8.

8.  His DD Form 214 shows in:

* item 4a (Grade, Rate, or Rank) – "MSG"
* item 4b (Pay Grade) – "E08"
* item 12h (Effective Date of Pay Grade) – "2003  05  01 [1 May 2003]"

9.  Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 2-41a (Lateral Appointments), in effect at the time, stated NCOs might be laterally appointed from one NCO grade to another within the same pay grade when change of duty required.  Change of duty for an E-8 required lateral appointment to/from MSG/1SG.  This regulation also stated the SQI for 1SG was "M."

10.  Army Regulation 635-200 (Enlisted Personnel, Personnel Separations), chapter 12, states NCOs holding the rank 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 only criteria for such placement on the Retired List are:

	a.  the Soldier must be serving as, and retiring as, an MSG;

	b.  the Soldier must possess SQI "M"; and

	c.  the Soldier must have served as a 1SG/E-8 (service as a 1SG while holding the rank/grade of sergeant first class/E-7 does not qualify).

11.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  It also established standardized policy for preparation of the DD Form 214.  It stated for item 4a, enter the active duty rank at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to show his retired grade as a 1SG/E-8 appears to have merit.

2.  The governing regulation states NCOs holding the rank of MSG at retirement, whose records show successful service as a 1SG, will be placed on the Retired List in the grade title 1SG.

3.  The evidence confirms:

* he completed the 1SG course and was awarded SQI "M"
* he served as a 1SG from 1 May 2003 to 1 April 2004
* he retired in the rank of MSG

4.  Based on the foregoing, it would be appropriate to correct his retirement orders to show he was placed on the Retired List in the rank of 1SG effective 1 September 2008.

5.  Showing his amended retirement orders to his identification card issuing facility should be sufficient for issuance of a new identification card showing his retired rank as 1SG.

6.  The evidence of record shows he was serving in the rank of MSG at the time of his separation.  Therefore, the rank of MSG is properly shown on his DD Form 214.

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 amending his retirement orders to show he was placed on the Retired List in the grade of 1SG effective 1 September 2008.

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 amending his rank shown on his DD Form 214.



      ____________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)                                         AR20150000429



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ABCMR Record of Proceedings (cont)                                         AR20150000429



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