IN THE CASE OF:	

		BOARD DATE:	12 January 2010  

		DOCKET NUMBER:  AR20090011897 


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) to show his temporary promotion to sergeant/pay grade E-5. 

2.  The applicant states that as a team chief he temporarily took over the responsibilities of a sergeant/pay grade E-5.  He states that while he did not receive promotion orders or get paid at that rank he did wear the rank of sergeant. 

3.  The applicant provides a copy of a DA Form 638-1 (Recommendation for Award) for the Army Achievement Medal (AAM) in support of this 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's military records show he enlisted in the Regular Army on 17 April 1992.  He was awarded the military occupational specialties of man portable air defense system crewmember and administrative specialist.

3.  The applicant was released from active duty on 20 August 1994.  His DD Form 214 shows his rank as specialist (SPC)/pay grade E-4.

4.  A DA Form 638-1 narrative states, in part, that the applicant assumed the responsibilities as a team chief when an E-5 became ill.

5.  There are no orders or other evidence in the applicant's records to indicate he was ever promoted to sergeant/pay grade E-5.

6.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes that promotions to sergeant will be stated on promotion orders issued by the promotion authority. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence supports the applicant's contention that he temporarily assumed the responsibilities of a sergeant.  However, being placed in a sergeant position does not equate to being promoted to the rank of sergeant.

2.  Promotions to sergeant require the issuance of orders.  There are no orders or other evidence in the applicant's records and he did not provide any orders showing he was ever promoted to the rank of sergeant.  As such, there is no evidentiary basis for changing the rank on his DD Form 214 to show the rank of sergeant.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090011897



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ABCMR Record of Proceedings (cont)                                         AR20090011897



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