RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 1 April 2008
DOCKET NUMBER: AR20070017923
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. Michael J. Fowler
Analyst
The following members, a quorum, were present:
Mr. Lester Echols
Chairperson
Mr. Joe R. Schroeder
Member
Mr. Larry W. Racster
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 rank be changed from Specialist Five
(SP5)/E-5 to Staff Sergeant (SSG)/E-6. He also requests two awards of the Bronze Star Medal.
2. The applicant states, in effect, that his Platoon Sergeant recommended him for promotion and that his Platoon Leader denied his promotion. He further states that his Platoon Sergeant also recommended him for the Bronze Star Medal and he believes that he should have received a second Bronze Star Medal upon the end of his tour in Vietnam.
3. The applicant provides U.S. Army Military Personnel Center Letter Orders Number D5-5, dated 5 May 1975; a U.S. Army Certificate of Retirement, dated
1 February 1975; an undated Freedom Team Certificate of Appreciation; and a
4 page Department of Veterans Affairs Disability Rating, dated 22 July 2005.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant requested correction of his records to show two awards of the Bronze Star Medal. There are no orders or other evidence authorizing award of this decoration to the applicant. In the absence of a proper award authority for this decoration, the applicant may request award of two Bronze Star Medals under the provisions of Section 1130, Title 10, United States Code. He has been notified by separate correspondence of the procedures for applying for the decoration under section 1130 and, as a result, it will not be discussed further in this Record of Proceedings.
3. The applicant enlisted in the Regular Army on 4 October 1967 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty (MOS) 76Q (Special Purpose Equipment Repair Specialist). He was promoted to Specialist Five (SP5)/E-5 on 29 March 1968.
4. The applicant was placed on the Temporary Disability Retired List on
30 January 1970. He was permanently retired on 1 February 1975 due to a physical disability.
5. The applicant's DD Form 214 for the period ending 30 January 1970 shows the entry of "SP5" in item 5a (Grade, Rate or Rank) and the entry of "E-5" in item 5b (Pay Grade).
6. There are no special orders in the applicant's service personnel records promoting him to SSG/E-6 while he was on active duty.
7. Army Regulation 600-200, chapter, in effect at the time, prescribed the promotion policy to pay grades E-4 through E-9 and the selection board process. It stated that a waiver of the requirement to appear before a selection board would not be granted. The board would consist of both officers and enlisted appointed by the appropriate promotion authority to select individuals for promotion to pay grades E-5 through E-9. A list of the individuals recommended by the board and selected by the promotion authority, in the order they were to be promoted, would be published.
8. Army Regulation 600-200, chapter 7, in effect at the time, also covered promotion of personnel hospitalized as a result of hostile action. It stated all individuals with an order of merit recommended list status for promotion to pay grades E-5, E-6, and E-7 at time of evacuation, who were transferred to a medical facility prior to promotion, would be promoted by the medical facility commander. Correspondence reflecting the individual's order of merit recommended list status would be forwarded to the medical facility commander with the individual's personnel record by the losing commander. Medical facility commanders with promoting authority could promote individuals assigned as patients who had an established order of merit recommended list status. Promotion could not be made earlier than the date the individual completed, without waiver, the normal time in grade and service requirements.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he was recommended for promotion to SSG by his Platoon Sergeant. However, there is no evidence in his military records that shows he was promoted to SSG and he has not provided evidence that shows he was recommended for promotion to SSG.
2. More importantly, there is no evidence in the applicant's records that shows he appeared before a promotion board prior to being retired. In addition, the applicant does not mention that he appeared before a promotion board. Therefore, his DD Form 214 with the ending period 30 January 1970, which shows he was promoted on 29 March 1968 to the rank of SP5/E-5, is correct.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__LE __ ___JRS__ ___LWR_ 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.
___Lester Echols_ _
CHAIRPERSON
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