IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100028068 


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 correction of 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).

2.  The applicant states:

* in May 1968, he was told he was going to get promoted to staff sergeant/E-6
* he was wounded on 25 May 1968
* he retired and got E-5 pay all those years
* the telegrams state he was promoted to E-6
* he believes he should have gotten E-6 pay from 25 May 1968 to 1999 when he went on Department of Veterans Affairs disability

3.  The applicant provides:

* Certificate of Retirement
* four Western Union telegrams
* DD Form 214

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.  He enlisted in the Regular Army on 12 July 1966 for a period of 3 years.  He served as a light weapons infantryman in Vietnam from 1 December 1967 until he was wounded in action on 25 May 1968 and transferred to the United States on 14 June 1968 for further medical treatment.  On 6 March 1970, he was honorably retired in the rank of sergeant/E-5 by reason of permanent disability.

3.  Item 5a of his DD Form 214 shows the entry "SGT" [sergeant].  Item 5b shows the entry "E-5."  Item 6 (Date of Rank) shows the entry "23 April 1968."

4.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was appointed to the temporary rank of sergeant/E-5 effective 23 April 1968.

5.  No evidence shows he was promoted to staff sergeant/E-6 prior to 6 March 1970.

6.  His AGPZ Form 977 (Date for Retired Pay) shows his retired grade is sergeant and the highest grade attained was sergeant.

7.  He provided four Western Union telegrams, dated 1968, which show his rank as staff sergeant.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was told he was going to be promoted to staff sergeant/E-6 and the telegrams state he was promoted to E-6.

2.  His military records show he was appointed to the temporary rank of sergeant effective 23 April 1968, which is properly reflected in items 5a and 5b of his DD Form 214.  Regrettably, in the absence of promotion orders to staff sergeant/E-6 the Western Union telegrams are not sufficient as a basis for amending items 5a and 5b of 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 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)                                         AR20100028068



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ABCMR Record of Proceedings (cont)                                         AR20100028068



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