RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 December 2005
      DOCKET NUMBER:  AR20050006414


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Mr. Melvin Meyer                  |     |Member               |
|     |Mr. Allen Raub                    |     |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 correction of his DD Form 214 (Armed Forces of
the United States Report of Transfer or Discharge) to show his rank as
sergeant (SGT), E-5.

2.  The applicant states that, a couple of days before he was wounded, he
was informed that he would receive orders for E-5.  He states that this
rank is shown on his orders for the Purple Heart, but he never received his
orders for E-5.

3.  The applicant provides a copy of his DD Form 214; his reassignment
orders to Fort Jackson, South Carolina; his orders awarding him the Purple
Heart; and his DA Form 20 (Enlisted Qualification Record).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 December 1971.  The application submitted in this case is
dated 19 April 2005.

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 on 14 April 1970.  He
completed basic combat training at Fort Bragg, North Carolina and was
further assigned to Fort Polk, Louisiana for advanced individual training
(AIT).  Upon completion of AIT, he was awarded military occupational
specialty 11B (Light Weapons Infantryman).  He was assigned to Vietnam on 9
November 1970.

4.  The applicant was promoted to specialist four (SP4) on 11 February
1971.

5.  Headquarters, 173rd Airborne Brigade General Orders Number 1551 dated
8 July 1971 awarded the applicant the Bronze Star Medal for meritorious
service from November 1970 to August 1971.  These orders show his rank as
SP4.



6.  Headquarters, 173rd Airborne Brigade General Orders Number 2032 dated
7 August 1971 awarded the applicant the Purple Heart for wounds received on
2 August 1971.  These orders show his rank as SGT.

7.  The applicant was transferred to the U.S. Army Hospital in Japan on 1
August 1971 and was medically evacuated to Womack General Hospital at Fort
Bragg, North Carolina on 22 November 1971.

8.  The applicant's personnel records contain an undated letter from the
commanding officer of the 173rd Airborne Brigade regarding the promotion
status of medical evacuees.  The commander indicated that the applicant was
eligible for promotion.

9.  Headquarters, United States Army Training Center and Fort Jackson
Special Orders Number 255 dated 29 October 1971 reassigned the applicant to
the
U.S. Army Transfer Point at Fort Jackson, South Carolina.  These orders
show his rank as SP4.

10.  The applicant underwent a separation physical examination on 6
December 1971.  He completed Block 2 (Grade and Component or Position) on
his Report of Medical History (Standard Form 89) indicating his grade as "E-
4."

11.  Headquarters, United States Army Personnel Center Special Orders
Number 266 dated 7 December 1971 released the applicant from active duty on
15 December 1971 in the rank of SP4.  These orders show he served in pay
grade E-4 for 1 year, 8 months and 2 days.

12.  Item 5a on his DD Form 214 shows his rank as "SP4" and item 5b shows
his grade as "E-4."  His date of rank is shown as 11 February 1971.

13.  There are no orders in the applicant's service personnel records which
show he was promoted to SGT, E-5 prior to his release from active duty.

14.  Army Regulation 635-5 (Separation Documents), in effect at the time,
established standardized policy for the preparation of the DD Form 214.  In
pertinent part it stated that the grade in which enlisted personnel served
at the time of separation, indicating whether permanent or temporary, would
be entered in item 5a and pay grade in item 5b on the DD Form 214.

15.  Army Regulation 600-200 (change 6), paragraph 7-12, in effect at the
time, stated that enlisted personnel otherwise eligible for promotion under
this regulation would not be deprived of consideration for such promotion
while missing, captured, detained, or hospitalized as a result of hostile
action and reportable as a casualty.  Immediate commanders could recommend
personnel for promotion under this paragraph provided they were not in a
nonpromotable status under paragraph 7-5 on date of entry into referenced
casualty status.

16.  Army Regulation 600-200 (change 6), paragraph 7-15a(3) stated that an
individual's eligibility for promotion to pay grades E-4 through E-9 could
be recommended or concurred in by the unit commander.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SP4 on 11 February 1971.

2.  The general orders awarding the applicant the Purple Heart show his
rank as SGT and a letter from his unit commander indicates he was eligible
for promotion; however, there is no evidence he was actually recommended
for promotion and there are no orders in his personnel records which show
he was ever promoted to SGT.  Therefore, there is insufficient evidence to
show he had been promoted to SGT.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 December 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
14 December 1974.  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

SP______  MM______  AR______  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.




                                  Shirley Powell_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050006414                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051213                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |129.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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