BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160003896 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160003896 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160003896 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) for the period ending 31 July 1990 to show he was retired in the rank/grade of sergeant (SGT)/E-5. 2. The applicant states the Army Review Boards Agency (ARBA) has the authority to issue a corrected DD Form 214 or DD Form 215 (Correction to DD Form 214); the National Personnel Records Center (NPRC) does not have the authority to correct rank. 3. The applicant provides copies of his: * DA Form 3713 (Data for Retired Pay), not dated * DD Form 214, for the period ending 31 July 1990 * a letter from ARBA Support Division, St. Louis, MO, dated 30 August 2000 * a memorandum from ARBA, dated 28 September 2000, with corresponding memorandum from the Army Board for Correction of Military Records (ABCMR), dated 26 September 2000 * a letter from the Transition and Separations Branch, U.S. Army Reserve (USAR) Personnel Command (ARPERSCOM), dated 26 October 2000 * DA Form 3713, dated 26 October 2000 * a letter from the National Personnel Records Center (NPRC), dated 28 January 2015 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. Following prior active service in the U.S. Air Force, the applicant enlisted in the Regular Army on 26 July 1974, in the rank/grade of specialist four (SP4)/E-4. He was promoted to SGT on 1 October 1985. 3. A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 14 June 1989, shows the applicant received nonjudicial punishment for various violations of Articles of the UCMJ, on or about 14 May 1989. His punishment included reduction in grade to E-4. 4. The applicant honorably retired from the Regular Army on 31 July 1990. The DD Form 214 he was issued shows he was retired in the rank/grade of SPC/E-4, with 15 June 1989 as his effective date of pay grade. 5. On 5 July 2000, the applicant was credited with 30 years of combined service, 20 years of active federal service and 10 years on the Retired List. 6. The applicant provides: a. A memorandum from ARBA, dated 28 September 2000, subject: 30-Year Grade Determination (10 USC SECTION 3964), shows the Army Grade Determination Review Board (AGDRB) determined the highest grade in which he served satisfactorily for the purpose of computation of retired pay was E-5. b. A letter from ARPERSCOM, dated 26 October 2000, which shows the Transition and Separation Branch notified the applicant of the following: * he was advanced on the Retired List effective 5 July 2000 to the grade of SGT/E-5 * a certificate evidencing the action was enclosed with the letter * effective 1 July 1976, publication of advancement orders was discontinued * he was entitled to a new identification card * Defense Finance and Accounting Service (DFAS) was notified to make the necessary adjustment to his retired pay REFERENCES: 1. Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214. It states the purpose of the separation document is to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form be complete and accurate, reflective of the conditions as they existed at the time of separation. 2. Title 10, U.S. Code, section 3964 (Higher Grade after 30 years of Service: Warrant Officers and Enlisted Members), states: a. Each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he served on active duty as determined by the Secretary of the Army. b. This section applies to: (1) warrant officers of the Army; (2) enlisted members of the Regular Army; and (3) Reserve enlisted members of the Army who, at the time of retirement, are serving on active duty. DISCUSSION: 1. The applicant's highest rank held during his period of active service was SGT. However, he was reduced in rank and retired in the rank of SPC. His DD Form 214 correctly shows the rank at which he was retired. 2. The AGDRB provided the applicant relief when he applied for a 30-year grade determination. The board determined he served satisfactorily at the rank of SGT for the purpose of retired pay. He was advised that he was eligible to receive a new identification card. This change in grade did not retroactively change the grade he held at the time of his retirement in 1990. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002022 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003896 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2