IN THE CASE OF:	  

		BOARD DATE:	  21 August 2008

		DOCKET NUMBER:  AR20080008018 


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, in effect, promotion to the rank of specialist four (SP4).

2.  The applicant states, in effect, that he never received any disciplinary action that warranted a reduction in rank during his tour in the Republic of Vietnam (RVN), and that he should have been promoted beyond the rank of private first class (PFC).  He states that it is his belief that he earned a promotion to SP4 based on his combat service.  

3.  The applicant provides no 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 record shows that he enlisted in the Regular Army and entered active duty on 28 February 1966, and he was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows, in Item 33 (Promotions and Reductions) that he was promoted to PFC on 13 September 1966, and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced on two separate occasions, and his final reduction on 10 October 1968, was to the rank of private/E-1 (PV1).  It also shows that subsequent to his final reduction to PV1, he was again advanced to private/E-2 (PV2) on 1 February 1969, and that this is the rank he held at the time of his separation.  

4.  Item 21 (Foreign Service) of the applicant’s DA Form 20 shows that he served in Germany for 8 months from 23 July 1966 to 14 February 1967, and in the RVN from 13 April 1967 to 12 April 1968.  Item 41 (Awards and Decorations) shows that during his active duty tenure, he earned the following awards:  National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); Combat Infantryman Badge (CIB); Purple Heart (PH); RVN Campaign Medal with Device 1960; Expert Marksmanship Qualification Badge with Rifle Bar; and 2 Overseas Service Bars.

5.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any orders or other documents that indicate he was ever recommended for or promoted to SP4 or any other grade above PFC by proper authority while serving on active duty.  

6.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four separate occasions for the offenses indicated:  30 September 1966, for willfully disobeying a lawful order given by his superior noncommissioned officer (NCO); 9 December 1967, for being found in an off-limits area on and for being found asleep on post; 8 August 1968, for disobeying a lawful order given by his senior NCO; and 
14 November 1968, for being disrespectful towards his superior NCO.  The applicant’s 8 August 1968 NJP resulted in his reduction from PFC to private/E-2 (PV2). 

7.  A DA Form 20B (Insert Sheet to DA Form 20B) shows that on 21 August 1969, a Special Court-Martial (SPCM) found the applicant guilty of violating Article 91 of the UCMJ by being disrespectful in language towards his superior NCO.  The resultant sentence included reduction to PV1.  

8.  On 28 February 1969, the applicant was honorably released from active duty (REFRAD).  The separation document (DD Form 214) he was issued at the time confirms he held the rank of PV2, and that he completed a total of 3 years of active military service.  The applicant authenticated the DD Form 214 with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.  

9.  Army Regulation 600-200 (Enlisted Personnel Management) contained the Army’s policy for enlisted promotions in effect at the time of the applicant's service.  Chapter 7 contained the Army's enlisted promotion policy.  It authorized promotions to pay grades E-4 and E-5 based on periodic quotas provided to commands.  In most cases, the order of merit for these promotions was established through the use of local promotion selection boards, and promotions had to be authorized by the proper promotion authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been promoted to SP4 based on his combat service was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record confirms the highest rank the applicant attained and held while serving on active duty was PFC, and that he was reduced for cause on two separate occasions, and was ultimately separated in the rank of PV2, which is documented on his DD Form 214, which he authenticated with his signature on the date of his REFRAD.  In effect, his signature was his verification that the information contained on the separation document, to include his rank, was correct at the time the DD Form 214 was prepared and issued.  Absent any evidence of record or independent evidence submitted by the applicant that shows he was promoted to SP4 by proper authority while serving on active duty, there is an insufficient evidentiary basis to support granting the requested relief.

3.  Notwithstanding his combat service, the applicant’s extensive record of misconduct, as evidenced by his record of NJP and his SPCM conviction, would support his not being promoted to SP4 during his active duty tenure, and his not being promoted at this late date. 

4.  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

___x____  ___x____  ___x ____  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.




      _______ _ x  _______   ___
               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)                                         AR20080008018



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ABCMR Record of Proceedings (cont)                                         AR20080008018



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