IN THE CASE OF:
BOARD DATE: 9 October 2008
DOCKET NUMBER: AR20080012702
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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was promoted to sergeant (SGT), E-5.
2. The applicant states that he was separated from the U.S. Army on 16 August 1969 in pay grade E-4 and it should have been pay grade E-5. A fellow Soldier notified him of his promotion and the special order included his name, social security number, and promotion to E-5.
3. The applicant provides no additional documents 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 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 was inducted into the Army of the United States on 17 August 1967 in pay grade private, E-1. At the completion of basic combat and advanced individual training, he was awarded military occupational specialty 13B (Field Artillery Crewman).
3. Headquarters, 2nd Infantry Division Special Orders Number 149, dated 28 May 1968, show the applicant was promoted to the grade of corporal (CPL), E-4 with an effective date of 25 May 1968.
4. Battery A, 6th Battalion, 37th Field Artillery Unit Order Number 31, dated 11 December 1968, shows the applicant was appointed to temporary acting noncommissioned officer (NCO) grade of SGT, E-5 on 11 December 1968.
5. Headquarters, Fort Riley, Kansas Special Orders Number 163, dated 7 August 1969, released the applicant from active duty on 15 August 1969 in the pay grade of CPL, E-4.
6. The applicant's DD Form 214 shows his rank as CPL in item 5a (Grade, Rate, or Rank) and his pay grade as E-4 in item 5b (Pay Grade). His date of rank is shown as 25 May 1968.
7. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at time, authorized appointment of acting sergeants as temporary NCO grades fill existing sergeant vacancies. Acting NCOs had all the authority of a regularly promoted NCO of the same grade; however, were not entitled to pay and allowances for such higher grades. Service would also not be credited as time in a higher grade for promotion or date of rank purposes. This regulation also stated that appointment would be terminated at the discretion of the appointing unit commander or would automatically be terminated upon assignment of a regularly promoted NCO to the position or on reassignment, whichever came first.
8. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. In pertinent part it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant was promoted to CPL, E-4 on 25 May 1968.
2. Orders show the applicant was appointed to the temporary rank/grade of acting SGT, E-5 on 11 December 1968. Since there are no orders available which show the applicant was regularly promoted to the rank of SGT, E-5 his DD Form 214 accurately reflects his rank and pay grade as CPL, E-4. His acting SGT orders would have automatically terminated at the time of his release from active duty, if not sooner.
3. Therefore, there is no basis for amending his DD Form 214 to show his rank and pay grade as SGT, E-5.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__XX_____ __XX______ ____XX____ 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.
______XXXX________________
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.
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