ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:. BOARD DATE: 6 May 2019 DOCKET NUMBER: 20170008050 APPLICANT REQUESTS: Correction of his record to show his highest held rank/grade was master sergeant (MSG)/E-8. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 June 1996 * DA Form 2-1 (Personnel Qualification Record) 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 (ABCMR) 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 although he retired on 30 June 1996 in the rank/grade of sergeant first class (SFC)/E-7, he previously held the grade of E-8 while on active duty. According to his calculations, he has a total of 30 years of time in active service and on the retired list. 3. A review of the applicant’s service records show the following on: * 28 May 1974 – enlisted in the Regular Army and served through multiple reenlistments * 11 July 1985 – Orders Number 77-44, issued by the U.S. Army Military Personnel Center, Alexandria, VA, promoted the applicant to the rank of SFC, effective 1 August 1985 with a Date of Rank (DOR) 17 July 1985 * 8 February 1996 – Orders Number 39-2, released the applicant from active duty and placed him on the retired list, effective 1 June 1996 in the rank/grade of SFC/E-7, current grade effective date 1 August 1985 * DA Form 2-1 (Personnel Qualification Record) shows in: * * item 27 (Remarks) his record was sent to the E-8 selection board on 26 October 1994 * item 35, section 7 (Current and Previous Assignments) he held a position as a 1SG from on or about 15 July 1992 to on or about 3 January 1993 * his record contains a DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) in which he was evaluated as a 1SG in the rank/grade of SFC/E-7 * his record is void of any orders promoting him to the rank/grade of master sergeant with a lateral appointment to the rank of 1SG * 30 June 1996 – honorably retired from active duty, DD Form 214 shows in item 4a (Grade, Rate, or Rank) SFC 4. Title 10 USC, section 3964 states, each retired member of the Army covered by subsection (b) (enlisted members of the Regular Army) 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 satisfactorily, as determined by the Secretary of the Army.. 5. Title 10 USC, section 3961 states, 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 that he holds on the date of his retirement. 6. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) paragraph 12-17 states NCO’s holding the grade of master sergeant at retirement, whose records show successful service as a 1SG first sergeant, will be placed on the retired list in the grade title “ 1SG.” Service in the duty position of first sergeant while in grade SFC does not meet this requirement. 7. AR 15-80 (Army Grade Determination Review Board and Grade Determinations) paragraph 3-2 states “highest grade served on active duty” is the grade to which a Soldier was actually promoted and paid pursuant to a lawful promotion. “Highest grade served on active duty” does not include merely being in a promotable status or serving in, “acting,” or holding a position or job title authorized at a higher grade, such as acting first sergeant. 8. AR 635-5 (Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. Source documents consist of DA Form 2-1, separation orders, or any other available record. Item 4a, enter the rank and pay grade at the time of separation. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence to show that he was ever promoted to the rank of Master Sergeant. Although he did serve as a First Sergeant during one assignment, the Board found a lack of orders to show he was promoted above the rank of Sergeant First Class. For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX XX XX: 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. 5/13/2019 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. 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 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. Title 10 USC, section 3964 states, each retired member of the Army covered by subsection (b) (enlisted members of the Regular Army) 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 satisfactorily, as determined by the Secretary of the Army.. 3. Title 10 USC, section 3961 states, 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 that he holds on the date of his retirement. 4. AR 635-200 (Personnel Separations – Enlisted Personnel) paragraph 12-17 states NCO’s holding the grade of master sergeant at retirement, whose records show successful service as a 1SG first sergeant, will be placed on the retired list in the grade title “ 1SG.” Service in the duty position of first sergeant while in grade SFC does not meet this requirement. 5. AR 15-80 (Army Grade Determination Review Board and Grade Determinations) paragraph 3-2 states “highest grade served on active duty” is the grade to which a Soldier was actually promoted and paid pursuant to a lawful promotion. “Highest grade served on active duty” does not include merely being in a promotable status or serving in, “acting,” or holding a position or job title authorized at a higher grade, such as acting first sergeant. 6. AR 635-5 (Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. Source documents consist of DA Form 2-1, separation orders, or any other available record. Item 4a, enter the rank and pay grade at the time of separation.