IN THE CASE OF:	

		BOARD DATE:	  30 December 2008

		DOCKET NUMBER:  AR20080014472 


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 that Item 6a (Grade, Rate or Rank) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 18 November 1977 be corrected to show sergeant instead of SP5 (specialist five).

2.  The applicant states he was appointed to sergeant on 3 April 1975.

3.  The applicant provides a copy of orders for appointment to sergeant 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 military personnel record shows he initially enlisted in the Regular Army on 25 June 1971 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) of 71B (Clerk Typist).  He was released from active duty on 9 May 1972 after having completed 10 months and 15 days of active service that was characterized as honorable.

3.  On 19 November 1974, the applicant enlisted in the Regular Army for a period of 3 years.  The applicant understood that his civilian acquired skill as a mason (MOS 51D) would be recognized upon enlistment and during his service in the Army.  The applicant was awarded the MOS of 51D effective 19 November 1974.

4.  On 19 November 1974, the applicant was assigned to C Company, 864th Engineer Battalion at Fort Lewis, Washington.

5.  Headquarters, 9th Infantry Division, Fort Lewis, Special Orders Number 30, dated 30 January 1975, promoted the applicant to SP5 effective 20 January 1975.  The applicant was promoted in the MOS of 51D.

6.  Company C, 864th Engineer Battalion Unit Orders Number 8, dated 3 April 1975, submitted by the applicant, appointed the applicant as an Acting Noncommissioned Officer (NCO) in the rank of sergeant/pay grade E-5.

7.  Company C, 864th Engineer Battalion evaluated the applicant on DA Forms 2166-5 (Enlisted Evaluation Report) for the periods from December 1974 to November 1975, from December 1975 to April 1976, from May 1976 to November 1976, and from December 1976 to August 1977.  On each evaluation report the applicant is identified as an SP5 and referred to in the comments sections as an SP5.

8.  Headquarters, 9th Infantry Division, Orders 172-162, dated, 26 August 1977, transferred the applicant to the Separation Transfer Point at Fort Lewis, identify him as an SP5.

9.  Headquarters, 9th Infantry Division, Orders 215-687, dated 25 October 1977, discharging the applicant effective 18 November 1977, identify him as an SP5.

10.  Item 6a of the applicant's DD Form 214 contains the entry "SP5."

11.  Item 18 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to SP5 on 20 January 1975.  There are no entries indicating the applicant was appointed to sergeant.

12.  Army Regulation 600-200 (Enlisted Personnel Management System), then in effect, provided authority for units to appoint qualified individuals as acting sergeants (E-5) to serve in position vacancies existing in their units at their present or higher grade.  This regulation also states that such appointments are terminated upon reassignment to another unit.

13.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  This regulation, in pertinent part, stated that the active duty grade at the time of separation will be entered in Item 6a of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his grade on his DD Form 214 should read sergeant instead of SP5.

2.  The applicant was appointed an Acting NCO by his unit commander as provided in accordance with the provisions of Army Regulation 600-200.  Five enlisted evaluation reports from the same unit submitted subsequent to the date of the unit orders identify the applicant as a SP5.  Upon transfer from that unit the appointment as an Acting NCO is terminated.  Therefore, the applicant's appointment to sergeant was temporary in order to fill a position vacancy in his unit.

3.  There is no evidence the applicant ever received a lateral appointment to sergeant.  

4.  In view of the above, the applicant was serving as a SP5 at the time of his discharge.  Therefore, the entry in Item 6a of his DD Form 214 is correct.

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 that 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)                                         AR20080014472



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ABCMR Record of Proceedings (cont)                                         AR20080014472



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