RECORD OF PROCEEDINGS


      IN THE CASE OF


      BOARD DATE:           22 July 2004
      DOCKET NUMBER:  AR2004104626


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Eric N. Anderson              |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 that his rank be corrected to read "Sergeant/E-
5" on his DD Form 214 (Armed Forces of the United States Report of Transfer
or Discharge) with an effective date of 16 September 1969.

2.  The applicant states that his rank is incorrectly listed on his DD Form
214 as Specialist Four/E-4.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) with an effective date of
16 September 1969; a self-authored letter dated 24 February 2004; an
enlisted promotion list, dated 23 August 1969; a promotion order, dated 23
August 1969; an discharge certificate, dated 7 October 1971; and an United
States Army Reserve letter order, dated 22 September 1971.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged error which occurred
on 16 September 1969, the date of his discharge.  The application submitted
in this case is dated 26 February 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 enlisted in the New Hampshire Army National Guard on
8 October 1965 and he was ordered to active duty on 13 May 1968.  He served
as a cannoneer assigned to the 1st Battalion, 92nd Artillery in Vietnam
from 16 September 1968 to 20 August 1969.  On 16 September 1969, the
applicant was honorably released from active duty.

4.  The applicant's DD Form 214 with the effective date of 16 September
1969 shows the entry of "Specialist Four/E-4 (T) [temporary]" in item 5a
(Grade, Rate or Rank).

5.  Item 33 (Appointments and Reductions) of the applicant’s DA Form 20
(Enlisted Qualification Record) does not show the applicant was promoted to
the rank of Sergent/E-5.
6.  The applicant's service records contain a Recommendation List for
Promotion of Enlisted Personnel, dated 23 August 1969, which shows that he
was number one on the list for promotion to the grade of E-5, while he was
assigned to B Battery, 92nd Artillery in Vietnam.

7.  The applicant provided a copy of Special Orders Number 164, dated
23 August 1969.  These orders show that the applicant was promoted to the
temporary (T) grade of Sergeant/E-5 in the Military Occupational Skill of
P36K40, with the effective date of 23 August 1969.

8.  In a 26 February 2004 self-authored statement, the applicant stated, in
effect, that he departed Vietnam on 5 September 1969 and returned to his
National Guard unit in New Hampshire.

9.  The applicant continued that he did not receive his promotion orders to
sergeant prior to the issuance of his DD Form 214.

10.  The applicant submitted an honorable discharge certificate, which
shows he was a sergeant/E-5 at the time of his discharge on 7 October 1971.

11.  The applicant submitted Letter Orders Number 09-498693, dated
23 September 1970, which shows the applicant was a sergeant/E-5 at the time
he was transferred from the United States Army Reserve Control Group Annual
Training (USAR) to the USAR Control Group Standby.

12.  The applicant submitted Letter Orders Number 09-1206346, dated
22 September 1971, which shows the applicant, was a sergeant/E-5 at the
time he was honorably discharged.

13.  Army Regulation 635-5 provides instructions for the preparation of the
DD Form 214.  It states, in pertinent part, that item 5a (Grade, Rate or
Rank) and 5b (Pay Grade) will be completed to show the active duty grade or
rank and pay grade at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show
the rank of "Sergeant/E-5."

2.  Evidence of records shows the applicant's rank on his DD Form 214 with
an effective date of 16 September 1969 is "Specialist Four/E-4 (T)."

3.  Special Orders Number 164, dated 23 August 1969 submitted by the
applicant shows he was promoted to Sergeant/E-5 (T).

4.  Based on all of the foregoing, it is clear that the applicant was
promoted to sergeant prior to his active duty separation date and therefore
is entitled to have his DD Form 214 corrected to show that his rank was
Sergeant/E-5 with a date of rank of 23 August 1969 at the time of his
separation.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 September 1969.  Therefore, the
time for the applicant to file a request for correction of any error or
injustice expired on 15 September 1972.  Although, the applicant did not
file within the ABCMR's statute of limitations, it is appropriate to waive
failure to timely file in this case based on the evidence submitted by the
applicant.

BOARD VOTE:

_WTM__  _BJE____  __ENA___  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that item 5a (Grade, Rate or Rank), item 5b
(Pay Grade), and item 6 (Date of Rank) of the DD Form 214 with an effective
date 16 September 1969 of the individual concerned be corrected to show in
item 5a (Grade, Rate or Rank) "Sergeant/E-5," item 5b (Pay Grade) "E-5
(T)," and item 6 (Date of Rank) "23 August 1969."




            __ Walter T. Morrison____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104626                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/07/22                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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