IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080003198 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of Item 5a (Grade, Rate or Rank) and Item 5b (Pay Grade) on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), from "specialist four (Temporary) [SP4 (T)]/E-4” to "sergeant (SGT)/E-5." 

2.  The applicant states that at the time of his discharge, his rank and pay grade were erroneously listed as SP4/E-4, although he had been promoted to SGT/E-5 earlier, while in the Republic of Vietnam.  After his discharge, he requested and was granted the balance of his discharge pay based on the pay grade of E-5; but, his DD Form 214 was not corrected to show the correct rank/grade.

3.  The applicant did not provide any additional documentary evidence 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 records show that he was inducted into the Army of the United States on 27 September 1967 in the rank/grade of private (PVT)/E-1.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31M (Radio Relay and Carrier Operator).  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) on 30 April 1969.

3.  The applicant’s records further show that upon successful completion of basic combat training, he earned an accelerated promotion to the rank of private/E-2, effective 2 December 1967 in accordance with paragraph 7-19b of Army Regulation 600-200 (Enlisted Personnel Management System), accelerated advancement. 

4.  On 21 February 1968, Company B, 5th Battalion, Student Brigade, U.S. Army Southeastern Signal School (USASESS), Fort Gordon, Georgia, published Unit Orders Number 19, announcing the applicant's promotion to private first class (PFC)/E-3, effective 21 February 1968.

5.  The applicant’s promotion orders to SP4/E-4 are not available for review with this case; however, Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he was promoted to SP4 (Temporary)/E-4, effective 22 March 1968, by authority of Special Orders Number 69, issued by Headquarters, USASESS, Fort Gordon, Georgia, on 22 March 1968.

6.  The applicant's records further show that he served in the Republic of Vietnam from 18 April 1968 to 29 April 1969.  He was assigned to Company A, 125th Signal Battalion, 25th Infantry Division (Light).

7.  On 14 March 1969, Headquarters, 25th Infantry Division, published Special Orders Number 73, awarding the applicant primary MOS (PMOS) 31M4O and withdrawing PMOS 31M2O, in accordance with paragraph 2-32d(4) of Army Regulation 600-200 (Enlisted Personnel Management).  Furthermore, the standard name line on the Orders shows the applicant's rank as SGT.




8.  Item 33 of his DA Form 20 contains the entry "SGT/E-5 (Temporary)."  This Item also shows the Authority for this promotion as "AR 158-140" (Army Regulation 158-140).

9.  There are no Special Orders in the applicant’s record that show he was promoted to SGT/E-5.

10.  On 30 April 1969, Headquarters, U.S. Army Personnel Center, Oakland, California, published Special Orders 120, releasing the applicant from active duty and transferring him to the USAR Control group.  The standard name line on the Orders show the applicant's rank as SGT.

11.  On 8 March 1971, by letter, Office of the Adjutant General, U.S. Army Administration Center, St. Louis, Missouri, notified the applicant that his records did not contain a copy of his promotion orders to SGT and that his records would be corrected if he furnished a copy of the promotion orders.  The applicant's records do not indicate if he responded or provided a copy of his promotion orders.

12.  Office of the Adjutant General, U.S. Army Administration Center, St. Louis, Missouri, Letter Orders Number 08-1225634, dated 15 August 1973, relieved the applicant from his obligation in the Standby Reserve of the U.S. Army Control Group and honorably discharged him effective 14 September 1972.  The standard name line on the Letter Orders listed the applicant’s grade as “SGT.”

13.  Paragraph 2-32 of Army Regulation 600-200, in effect at the time, stated that the primary MOS has significance in that it represents an investment of time, money, and experience in an individual by the Army and it is counted as an asset in the Army inventory of skills; the inventory, in turn, serves as a basis for determining training requirements, promotion quotas, and other actions of individual and Army-wide importance.  Re-designation of PMOS was mandatory upon withdrawal of PMOS; upon completion of any training or retraining action permitted by current Army circulars listing surplus and shortage MOS for use in specific personnel actions; upon direction of Headquarters, Department of the Army; and upon appointment to a higher grade in MOS other than currently designated PMOS.  In such instances, MOS in which appointment is made will be designated PMOS. 





14.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the promotion of enlisted personnel to grade E-3 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders.  Unit orders were issued for promotions to grade E-3 and E-4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank and grade should be corrected to show SGT/E-5 instead of SP4/E-4.

2.  The applicant's record is void of his promotion orders to SGT/E-5.  Furthermore, the entry in Item 33 of his DA Form 20 that shows he was promoted to SGT/E-5 (Temporary) cites the authority for this promotion as Army Regulation 158-140.  This entry cannot be authenticated since this regulation is not a valid regulation.  The entry may have been intended to show Army Regulation 140-158 instead; yet, again, Army Regulation 140-158, in effect at the time, governed promotion of USAR personnel, not Regular Army personnel.

3.  The evidence of record further shows that, during his service in the Republic of Vietnam, the applicant was issued an order awarding him an MOS that indicates he was appointed in a higher grade.  Furthermore, his release from active duty orders as well as his discharge from the USAR Control Group orders, reflect the rank of SGT on his standard name line.  

4.  It is not clear why his record contains his MOS orders but not his promotion orders.  Nevertheless, promotions of enlisted personnel to grade E-3 through    E-9 were announced in routine orders.  In the absence of such orders and/or the authority for this promotion, there is insufficient evidence to grant the applicant the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


							XXX
       _    _______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003198



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ABCMR Record of Proceedings (cont)                                         AR20080003198



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