RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 December 2007
      DOCKET NUMBER:  AR20070010963


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Ms. Jeanette R. McCants           |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 5b (Pay Grade) of his 5
March 1970 separation document (DD Form 214) be corrected to reflect the
pay grade E-6.

2.  The applicant states, in effect, that Item 5b of his DD Form 214 should
be corrected to reflect the pay grade of E-6.

3.  The applicant provides his DD Form 214 and an extract of a promotion
order in support of his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he was inducted into the Army and
entered active duty on 13 March 1968, and he was trained in and awarded
military occupational specialty (MOS) 12B (Combat Engineer).

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows, in
Item 31 (Appointments and Reductions), that the applicant was promoted to
the rank and pay grade of sergeant/E-5 (SGT/E-5) on 7 November 1969, and
that this is the highest rank and pay grade he attained while serving on
active duty.

4.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
orders or other documents that indicate he was ever promoted above the rank
and pay grade of SGT/E-5 while he was still serving on active duty.
Headquarters, United States Army Personnel Center, Oakland, California,
Special Orders Number 64, dated 5 March 1970, directed the applicant's
release from active duty (REFRAD) and transfer to the United States Army
Reserve in the rank and pay grade of SGT/E-5.
5.  On 5 March 1970, the applicant was honorably REFRAD after completing
1 year, 11 months and 23 days of active military service.  Item 5a (Grade,
Rate, or Rank) and Item 5b (Pay Grade) of the DD Form 214 he was issued at
the time shows he held the rank and pay grade of SGT/E-5, and the applicant
authenticated this document with his signature on the date of his REFRAD.

6.  The applicant provides a copy of a second page of orders issued by
Headquarters, 25th Infantry Division on 7 March 1970, which indicate the
applicant was appointed to the rank of staff sergeant by Special Orders
Number 66, dated 7 March 1970.  It shows the applicant was promoted to the
rank and pay grade of staff sergeant/E-6 (SSG/E-6) effective 4 February
1970.

7.  Army Regulation 600-200 (Enlisted Personnel Management System), in
effect at the time, provided the enlisted personnel management policy for
enlisted members of the Army, and Chapter 7 contained the enlisted
promotion policy.  Paragraph 7-6 contained guidance on promotion waivers
and stated, in pertinent part, that for temporary appointments above the
grade of E-3, commanders who received promotion quotas direct from
Department of the Army and commanders of units normally commanded by a
general officer were authorized to waive not more than one-half of the
prescribed time in grade requirement for promotion.  Section III provided
guidance on the temporary appointment to pay grades E-4 through E-9 and
Paragraph 7-13 contained the general provisions pertaining to the temporary
appointment of enlisted personnel of the Army to pay grades E-4 through E-
9.  Paragraph 7-15 provided eligibility and selection criteria and
stipulated to that in order to be eligible for promotion to pay grade E-6,
a member must have completed 10 months in pay grade E-5.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that Item 5b of his DD Form 214 should be
corrected to show he held the pay grade of E-6 on the date of his
separation was carefully considered.  However, there is insufficient
evidence to support this claim.

2.  The governing regulation in effect at the time required a member have
10 months time in grade as an E-5 in order to receive a temporary
appointment to
E-6, and that at most one-half of this could be waived by an appropriate
commander with promotion authority.

3.  In this case, the evidence of record confirms the applicant was
promoted to SGT/E-5 on 21 November 1969.  As a result, he had less than
four months time in grade as an E-5 on 5 March 1970, the date of his
REFRAD.  Therefore, notwithstanding the order he provided, which was dated
after his REFRAD and indicated he was promoted to SSG/E-6, effective 4
February 1970, based on his date of rank to SGT/E-5, which was 21 November
1969, he would not have been eligible for appointment to SSG/E-6, even with
a maximum waiver, until 20 April 1970.

4.  Further, the applicant's 5 March 1970 DD Form 214 confirms he held the
rank and pay grade of SGT/E-5 on the date of his REFRAD, and the applicant
authenticated this document with his signature on the date of his
separation.  In effect, his signature was his verification that the
information contained on the
DD Form 214, to include his rank and pay grade, was correct at the time the
DD Form 214 was prepared and issued.  Therefore, in view of the facts of
this case, the unverified orders provided by the applicant are not
sufficiently convincing to support granting the requested relief at this
late date.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RTD __  __JRM __  __JLP  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____Richard T. Dunbar___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070010963                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/20                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/03/05                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |OS Ret                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  1021 |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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