IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100012345


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 advancement on the retired list to the highest grade he held on active duty.

2.  The applicant states that he served in pay grades E-8 and E-9 positions but he is not sure whether or not he is eligible for advancement.

3.  The applicant provides, in support of his request, copies of 

* Enlisted Evaluation Report (EER) ending on June 1986, as the Senior Operations Noncommissioned Officer, a pay grade E-8 position 
* EER ending on 1 January 1987, in the same position
* Section VII (Current and Previous Assignments) from his Personnel Qualification Record – Part II, showing assignment to pay grade E-8 and E-9 positions
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* an extract from a Handbook for Retired Soldiers stating that individuals with a combined total of 30 years of active duty and on the retired list can be advanced to the highest grade satisfactorily held.

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, a career infantry Soldier, was promoted to sergeant first class, pay grade E-7, on 27 July 1981.

3.  He retired in that pay grade on 30 June 1988.

4.  He served successfully in E-8 and E-9 duty assignments, but there is no available evidence that he was ever promoted above pay grade E-7.

5. Title 10, U.S. Code, Section 3964 provides that enlisted personnel may be advanced in grade to the highest grade satisfactorily held, as determined by the Secretary of the Army, when their active service and service on the Retired List totals 30 years.  This service may consist of combined active service and service in the United States Army Reserve Control Group (Retired).

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he served in pay grades E-8 and E-9 positions but he is not sure whether or not he is eligible for advancement on the retired list.

2.  Although he served successfully in E-8 and E-9 duty assignments there is no available evidence that he was ever promoted beyond pay grade E-7.  Therefore, he is not eligible for advancement on the retired list.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  There is no evidence or argument to support that conclusion.

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)                                         AR20100012345



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ABCMR Record of Proceedings (cont)                                         AR20100012345



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