RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 May 2007
	DOCKET NUMBER:  AR20060016298 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Michael J. Flynn

Member

Ms. Rose M. Lys

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 item 5a (Grade, Rate, or Rank) be corrected to show the entry "SGT" (Sergeant), instead of the entry "SP4" (Specialist Four); and item 5b (Pay Grade), be corrected to show the entry "E-5", instead of "E-4."

2.  The applicant states, in effect, that he served in pay grade E-5 and it was just typed in wrong.   

3.  The applicant provides a copy of his DD Form 214, a copy of his promotion merit roster, and a copy of unit orders appointed him as an acting sergeant, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 April 1972, the date of his release from active duty.  The application submitted in this case is dated 14 November 2006.

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's record shows he was inducted into the Army of the United States on 8 April 1971.  The applicant successfully completed basic combat training and advanced individual training at Fort Leonard Wood, Missouri, and advanced individual training at Fort Polk, Louisiana.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 11B, Light Weapons Infantryman.

4.  The applicant was promoted to pay grade E-4 on 7 November 1971.  He served in Vietnam from 8 April 1971 to 15 April 1972.  He served until he was released from active duty on 15 April 1972.  He was transferred to the U. S. Army Reserve (USAR) Control Group (Annual Training). 

5.  Item 5a, of his DD Form 214, shows the entry "SP4," item 5b, shows the entry "E-4," and item 6 (Date of Rank), shows the entry "7 Nov 71" (7 November 1971).

6.  The applicant provides a copy of Company E, 2nd Battalion (Airmobile), 327th Infantry Unit Orders Number 5, dated 5 March 1972, which appointed him as an acting sergeant, in MOS 11B2O, effective 5 March 1972.

7.  The applicant provided a copy of a Promotion Merit Roster to Grades E-5 and E-6, dated 11 March 1972, from Headquarters, 2nd Battalion (Airmobile), 327th Infantry, 3rd Brigade (Sep), 1st Cavalry Division (Airmobile).  The roster indicates he was selected and was placed on the Battalion Enlisted Promotion Order of Merit Roster with 535.1 points, effective 9 March 1972, in MOS 11C4O.  

8.  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.  It also states that item 6 (Date of Rank) will be completed to show the date of rank of the promotion to the current pay grade from the most recent promotion order or reduction instrument.  

9.  Army Regulation 600-200, in effect at that time, set forth the basic authority for the Enlisted Personnel Management System.  Chapter 7 covered promotions and reductions.  Paragraph 7-10, applied to acting noncommissioned officers.  It stated in pertinent part, that company, troop, battery, and separate detachment commanders could appoint qualified individual 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 (NCO).   It also stated that acting noncommissioned officers were not entitled to pay and allowances for such higher grades, and service would not be credited as time in a higher grade for promotion or date-of-rank purposes.

DISCUSSION AND CONCLUSIONS:`

1.  The evidence shows that the applicant was promoted to pay grade E-4 effective 7 November 1971.  He was appointed as an acting sergeant effective 5 March 1972, and selected and placed on the Battalion Enlisted Order of Merit Roster, effective 9 March 1972, with 535.1 points, in MOS 11C4O.  

2.  There is no evidence in the available records, and the applicant has provided none, to show that he was officially promoted to sergeant prior to his release from active duty.  Therefore, there is an insufficient basis upon which to correct items 5a and 5b, of his DD Form 214.
3.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 April 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 April 1975.  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

_MJF ___  __RML__  __RTD___  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.




_____Richard T. Dunbar____
          CHAIRPERSON

INDEX

CASE ID
AR20060016298
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070503
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19720415
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.