ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 September 2019 DOCKET NUMBER: AR20180003516 APPLICANT REQUESTS: * correct rank at the time of retirement to reflect sergeant first class (SFC) / E-7 * correct rank for pay purposes changed to reflect SFC/E-7 * back pay for the difference in pay between staff sergeant (SSG)/E-6 and SFC/E-7 back to August 1991 * correct his DD Form 214 (Certificate of Release or Discharge) to reflect the rank of SFC/E-7 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 3713 (Data for Retired Pay) * DD Form 214 * Retirement Account Statement * Standard Form (SF) 180 (Request Pertaining to Military Records) * Basic Pay Scale Effective 1 January 1991 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He is requesting that his rank at the time of retirement be corrected to reflect the rank of SFC/E-7 as his current rank of SSG/E-6 is incorrect. He is also requesting that his rank for pay purposes be changed to reflect SFC/E-7 and received back pay to compensate for the difference in pay between SSG/E-6 and SFC/E-7 which he should have received since August 1991 when he retired. He would like to have his DD Form 214 corrected to reflect the rank of SFC/E-7. b. He recently discovered that on or about 8 February 1991, he was promoted to the rank of SFC/E-7 about 6 months before he retired from the Army. This is reflected on the DA Form 3713, which he provided. He discovered this error 13 January 2015, when he requested his complete service records from the National Personnel Records Center. He believes he is and has been entitled to retirement pay at the grade of E-7 since August 1991, because he entered active military service before 1980. His pay should be based on his final basic pay. At the time he retired, he was entitled to SFC/E-7. He has been searching for additional records from November 2016 to November 2017 to further validate his claim, but unfortunately the process of requesting service records commonly takes at least a year. He believes that he was never notified of his promotion nor was it properly annotated in his service records because of the short time between his promotion and the retirement dates. 3. The applicant provides: a. DA Form 3713 (Data for Retired Pay), dated 31 May 1991, which shows: * item 2 (Active Duty Grade) E-7 * item 3 (Retired Grade) E-7 * item 8 (Highest Grade Attained) E-7 * item 9 (Permanent Grade) E-7 * item 10 (Retired Pay) E-7 * item 14 (Letter Order Number) 86-03 * item 15 (Date of Order) 8 February 1991 * item 17 (Date Place on Retired List) 1 August 1991 * item 20 (Statue Authorizing Retirement) Title 10 United States Code (USC) 3914 * item 21 (Statue Authorizing Retired Grade) Title 10 USC 3961 b. DD Form 214, shows he was released from active duty with honorable characterization of service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 12 (For Length of Service) in the grade of SSG/E-6 and reassigned to the United States Army Reserve (USAR) Control Group (Retired Reserve) on 31 July 1991. His DD Form 214 shows that he completed 8 years, 10 months, and 20 days of active service for this period and 11 years, 1 month and 13 days of prior active service. 4. A review of the applicant’s service record shows: a. He enlisted in the regular Army (RA) on 28 July 1971. b. Special Order Number 70, dated 11 April 1973, discharged the applicant on 29 April 1973 with an honorable characterization of service for reenlistment. c. He reenlisted in the RA on 30 April 1973. d. He was discharged from active duty on 29 January 1979 with an honorable characterization of service. His DD Form 214 shows that he completed 5 years and 9 months of active service. e. He reenlisted in the RA on 30 January 1979. f. DA Form 1695 (Oath of Extension of Enlistment) dated 22 February 1980, the applicant extended his enlistment for 10 months to meet service remaining requirement to complete a normal overseas tour. g. He reenlisted in the RA on 10 September 1982. h. Order Number 128-68, dated 3 July 1985, discharged the applicant on 4 July 1985 for immediate reenlistment. i. He reenlisted in the RA on 5 July 1985. j. DA Form 3713 (Data for Retired Pay) dated 31 May 1991, that shows the type of data was initial submission: * item 2 (Active Duty Grade) E-7 * item 3 (Retired Grade) E-7 * item 8 (Highest Grade Attained) E-7 * item 9 (Permanent Grade) E-7 * item 10 (Retired Pay) E-7 * item 14 (Letter Order Number) 86-03 * item 15 (Date of Order) 8 February 1991 * item 17 (Date Place on Retired List) 1 August 1991 * item 20 (Statue Authorizing Retirement) Title 10 United States Code (USC) 3914 * item 21 (Statue Authorizing Retired Grade) Title 10 USC 3961 k. DA Form 1695, dated 16 July 1991, shows that applicant extended his enlistment in the grade of SSG/E-6 to meet retirement eligibility to obtain a new expiration term of service (ETS) of 31 July 1991. l. He was released from active duty on 31 July 1991 with an honorable characterization of service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 12 (For Length of Service) in the grade of SSG/E-6 and reassigned to the United States Army Reserve (USAR) Control Group (Retired Reserve) on 31 July 1991. His DD Form 214 shows that he completed 8 years, 10 months and 20 days of active service for this period and 11 years, 1 month and 13 days of prior active service. 5. By regulation 600-200 (Enlisted Personnel Management System), contains standards that offer Army wide opportunities for advancement. The Army promotes Soldiers who are qualified and who will accept Army wide assignments. Since Headquarters Department of the Army (HQDA) administers promotions to grades SFC /E-7 through sergeant major (SGM)/E-9, commanders are responsible for notifying HQDA when Soldiers whose names appear on the Department of the Army (DA) recommended list are non-promotable such as their voluntary retirement application has been approved. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions were carefully considered. He provided DA Form 3713 as evidence he was promoted to E7. However, the applicant’s military record is absent evidence that shows he was selected for promotion to E7, and promotion orders to the grade of E7. Based upon the preponderance of the evidence, the Board agreed there is insufficient evidence to grant relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 600-200 (Enlisted Personnel Management System), in effect at the time, contains standards that offer Army wide opportunities for advancement. The Army promotes Soldiers who are qualified and who will accept Army wide assignments. a. Paragraph 7-6 (Non-promotable Status (All Enlisted Grades), since Headquarters Department of the Army (HQDA) administers promotions to grades SFC/E-7 through sergeant major (SGM)/E-9, commanders are responsible for notifying HQDA when Soldiers whose names appear on the Department of the Army (DA) recommended list are non-promotable: * absent without leave (AWOL) * under court martial charges * serving a court martial sentence * in court martial proceedings that may result in other than honorable discharge * suspension of favorable personnel actions * written recommendations has been sent to promotion authority to reclassify a Soldier for inefficiency or disciplinary reasons * being punished under Article 15 * ineligible for reenlistment * without appropriate security clearance, for SFC/E-7 required by the military occupational specialty (MOS) in which to be promoted * denied reenlistment * written recommendation which may result in removal from a recommended list * failure of SQT (Skill Qualification Test) * failure to qualify for reenlistment to meet service remaining obligation for promotion * selected for assignment and removed from the assignment instruction for declining reenlistment or extension * such as their voluntary retirement application has been approved * recommendation has been written to remove the Soldier from the recommended list * exceed body fat standard or maximum allowable weight * failed Army Physical Readiness Test (APRT) or have not taken the APRT within the last 9 months * in the Army Alcohol and Drug Abuse Prevention and Control Program b. Paragraph 7-37 (Eligibility and General Criteria for Consideration), eligibility for promotion consideration is based on: * date of rant (DOR) * be serving on active duty in an enlisted status on convening date of the selection board * have a high school diploma or general education degree equivalent * not barred from reenlistment * not have an approved retirement before the convening date of the selection board * not eligible for reenlistment due to declination of continued service * have completed a minimum of 1 year on active duty prior to the convening date of the board c. Paragraph 7-43 (Acceptance), unless a Soldier declines promotion it is accepted as of the effective date of the announcing order. The name of a Soldier who declines promotion will be removed from the recommended list. * Soldier promoted to grades SFC/E-7, master sergeant (MSG)/E-8, and SGM/E-9 will incur a 2 year service obligation, it will be from the effective date of promotion * Soldiers on the recommended list will be promoted on the last day of the month before being placed on the retired list if their sequence number has not been reached and are in one of the following categories: (1) On the DA promotion recommended list and will complete 30 years of active Federal Service, (2) Will have reached age 55 * 2 year service obligation does not apply to those separated for any reason other than voluntary non-disability retirement * promotion order will include the following statement “Soldiers who are promoted automatically incur a 2 year service obligation before voluntary non- disability retirement” * promoted Soldier may not, at his/her own request, be reduced to terminate the above service obligation * acceptance of promotion by a Soldier will be considered as acceptance of the recommended MOS (RMOS) as his/her primary MOS effective in promotion 3. Army Regulation (AR) 635-5 (Personnel Separations – Separation Documents), in effect at the time, table 2-1 (DD Form 214 Preparation Instructions, block number 4a and b (Grade, Rate or Rank and Pay Grade), enter active duty grade or rank and pay grade at the time of separation. 4. Department of Defense Instruction (DoDI) 7000.14-R Volume 7b (Military Pay Policy- Retired), in effect at the time, a. 010102 (Retired Pay Base), final basic pay for member who first entered military service before September 8, 1980, the retired pay bas is generally the final basic monthly pay that the member was receiving at the time of retirement. b. 0105 (Rank and Pay Grade), 010501 (General Determination), grade at retirement unless entitled to a higher grade under some other provision of law, those regular and reserve member who retie other than for disability will retire in the regular or reserve grade they held on the date of retirement. c. 030103 (Voluntary Retirement), a member who entered service before September 8, 1980 the retired or retainer pay base is generally the monthly basic pay rate applicable on the date of the member’s retirement for the grade or rank in which the member was retired or to which the member is advanced on the retired list. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003516 5 1