RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 DECEMBER 2005
      DOCKET NUMBER:  AR20050004256


      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             |
|     |Ms. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Ronald Blakely                |     |Member               |
|     |Ms. Jeanette McCants              |     |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 that his DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge) be corrected by changing his rank
and pay grade.

2.  The applicant states that his rank and pay grade on his DD Form 214
should show Sergeant, pay grade E-5, as shown on his DA Form 305-3 (Duty
Roster).

3.  The applicant provides a copy of his DD Form 214, and a copy of DA Form
305-3, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
2 September 1969.  The application submitted in this case is dated 23
November 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 limitations 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 was inducted into the Army of the United States on 25
January 1968 for a period of 2 years.  He served in Vietnam from May 1968
until August 1969.

4.  He was promoted to specialist four, pay grade E-4 on 3 May 1968.  There
is no indication he was ever promoted to pay grade E-5.

5.  On 31 August 1969, a separation medical examination cleared the
applicant for separation, and showed his grade as Specialist Four, E-4.

6.  The Duty Roster submitted by the applicant is not readable, but does
appear to indicate he was serving in the rank of sergeant, E-5.


7.  On 2 September 1969, the applicant was released from active duty under
a provision which permitted the early separation of overseas returnees.
His service was characterized as honorable and his grade and rank on his
separation document were recorded as Specialist Four, E-4.

9.  On 1 November 1990, the applicant’s DD Form 214, was corrected to show
he was awarded the Good Conduct Medal, and the Republic of Vietnam
Gallantry Cross with Palm Unit Citation Badge.  At the time he requested
these changes he made no mention of his having an incorrect grade shown on
his DD Form 214.

10.  Army Regulation 600-200, in effect at the time, established the
policies and provisions for the appointment of acting noncommissioned
officers.  The regulation stated that unit commanders could appoint
qualified individuals as acting corporals (E-4) and acting sergeants (E-5)
to serve in position vacancies existing in their units, including those
resulting from temporary absences of assigned noncommissioned officers.
Appointment of acting noncommissioned officers and termination of such
status was to be announced in orders issued by the appointing authority.
An acting noncommissioned officer's status terminated upon reassignment to
another unit, at the discretion of the unit commander who made the
appointment, and upon assignment of a regularly promoted noncommissioned
officer to the position.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the available records to substantiate the
applicant’s claim that he had been promoted to Sergeant, pay grade E-5
prior to his separation.

2.  The duty roster submitted by the applicant is not sufficiently
compelling to grant the relief requested.  It is possible that he was
serving as an "acting" sergeant, but that title would not have carried over
into his separation and would have been terminated upon his reassignment
for separation processing.

3.  The actions by the Army in this case were proper, and there is no doubt
to be resolved in favor of the applicant.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 September 1969; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
1 September 1972.  The applicant did not 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

___JH___  ___RB __  __JM ___  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.




                                  _______James Hise_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004256                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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