IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011880 


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 that items 5a (Grade, Rate or Rank) and 5b (Pay Grade) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show specialist five (SP5)/E-5 instead of specialist four (SP4)/E-4.

2.  The applicant states that his promotion orders for SP5 came through before he left Vietnam.

3.  The applicant provides discharge orders in support of his application.

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 was inducted into the Army of the United States on 16 June 1968.  He served in Vietnam from 30 May 1969 to 24 April 1970.  On 24 April 1970, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.

3.  Item 5a of his DD Form 214 shows the entry "SP4."  Item 5b of his DD Form 214 shows the entry "E-4."  Item 6 (Date of Rank) on his DD Form 214 shows the entry "18 SEP 69."  

4.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the applicant was promoted to the temporary rank of SP4 effective 18 September 1969.

5.  There are no orders which show the applicant was promoted to SP5 in the available records.  However, the applicant's service personnel records contain several documents (DD Form 137 (Installation Clearance Record), dated 12 April 1970; a DA Form 1811 (Physical and Mental Status on Release from Active Duty), dated 24 April 1970; a DD Form 2376 (Notification to State Adjutants General Release from Active Duty of Obligated Reservist), dated 24 April 1970; a Standard Form 88 (Report of Medical Examination), dated 24 April 1970; and a Standard Form 89 (Report of Medical History), dated 24 April 1970) which show his rank as SP5.

6.  In support of his claim, the applicant provided discharge orders, dated 24 April 1970, which show his rank as specialist five.

DISCUSSION AND CONCLUSIONS:

Although the applicant's discharge orders and several documents show his rank as SP5/E-5, there are no orders which show he was promoted to E-5 prior to his separation.  In the absence of promotion orders to SP5, there is insufficient evidence on which to amend items 5a and 5b on his DD Form 214. 

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)                                         AR20090011880



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ABCMR Record of Proceedings (cont)                                         AR20090011880



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