RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 February 2005
      DOCKET NUMBER:  AR0040000253


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. William D. Powers             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his separation document (DD
Form 214) be corrected to reflect his rank and pay grade as sergeant/E-5
(SGT/E-5).

2.  The applicant states, in effect, that his rank and pay grade should be
SGT/E-5 instead of specialist four/E-4 (SP4/E-4) as is currently entered in
Item 5a (Grade, Rate or Rank) and Item 5b (Pay Grade).

3.  The applicant provides a copy of acting SGT appointment orders,
aircraft crewman award orders and separation orders in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 5 August 1970.  The application submitted in this case is
dated 9 April 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows he was inducted into the Army and entered
active duty on 20 November 1968.  He was trained in, awarded and served in
military occupational specialty (MOS) 68G (Airframe Repairer).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows, in
Item 33 (Appointments and Reductions), that he was promoted to the rank and
pay grade of SP4/E-4 on 25 June 1969 and that this is the highest grade he
held while serving on active duty.

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
orders or documents indicating that the applicant was ever selected for or
promoted to the rank and pay grade of SGT/E-5 by proper authority.
6.  The MPRJ also contains a copy of Special Orders Number 199, dated 18
July 1970, issued by Headquarters, 4th Infantry Division, APO San Francisco
9662, which reassigned the applicant to the United States Army Vietnam
(USARV) Returnee Detachment, for further assignment to Fort Lewis,
Washington for separation processing.  These orders listed the applicant’s
rank and pay grade as SP4/E-4.

7.  On 5 August 1970, the applicant was honorably released from active duty
(REFRAD) after completing a total of 1 year, 8 months and 16 days of active
military service.  The DD Form 214 he was issued at the time listed his
rank and pay grade as SP4/E-4 in Items 5a and 5b.  The applicant
authenticated this document with his signature in Item 32 (Signature of
Person Being Transferred or Discharged).

8.  The applicant provides a copy of Unit Orders Number 29, dated 26 May
1970, issued by Company E (Transportation Aircraft Maintenance), 704th
Aircraft Maintenance Battalion, 4th Infantry Division, APO San Francisco
96262.  These orders appointed the applicant an acting SGT.  He also
provides a copy of Headquarters 4th Infantry Division Special Orders Number
209, dated 28 July 1970, which awarded him the Aircraft Crewman Badge.
These orders listed his rank as SGT in the standard name line.  He further
submits a copy of Special Orders Number 217, dated 5 August 1970, issued by
Headquarters, United States Army Personnel Center, Fort Lewis, which
authorized his release from active duty.  These orders also listed his rank
as SGT in the standard name line.

9.  Army Regulation 600-200 (Enlisted Personnel Management System), in
effect at the time, prescribed the policies, responsibilities and
procedures pertaining to the career management of Army enlisted personnel.
Chapter 7 provided the policies and procedures for promotion and reduction
of enlisted personnel.  Paragraph 7-10 contained guidance on appointment of
acting noncommissioned officers (NCOs).  It stated, in pertinent part, that
unit commanders could appoint qualified individuals as acting corporals and
acting sergeants to fill unit vacancies.  It further specified that acting
NCOs were not entitled to pay and allowances for such higher grades and
that service would not be credited as time in a higher grade for promotion
or date of rank purposes.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his separation document should be
corrected to reflect his rank and pay grade as SGT/E-5 and the supporting
documents he provided were carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The evidence of record confirms the highest rank and pay grade the
applicant attained while serving on active duty was SP4/E-4 and that this
was the rank and pay grade he held on the date he was REFRAD, as evidenced
by his DA Form 20.  As a result, the SP4/E-4 rank and pay grade entries on
his DD Form 214 were and remain the proper rank and pay grade entries.
Further, the applicant authenticated his separation document with his
signature on the date of his REFRAD, thereby verifying the information it
contained, to include the rank and pay grade entries, was correct at the
time the DD Form 214 was prepared and issued.

3.  The record further shows the applicant was appointed an acting sergeant
by his unit commander to fill a unit vacancy.  However, by regulation, this
acting NCO appointment was not a formal promotion to SGT/E-5 and his
service as an acting SGT was not creditable for promotion or date of rank
purposes.  As a result, there is no basis to change the rank and pay grade
listed on his separation document at this time.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 August 1970.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 4 August 1973. However, he failed to file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WTM_  __WDP_  ___JTM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Walter T. Morrison ___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000253                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/01                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/08/05                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |OS Rtn                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]