DOCKET NUMBER:  AR20090001810 


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, that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 7 October 1970, be corrected to show he was released from active duty in the rank and pay grade of specialist five (SP5)/E-5.  He also requests that he be issued a new DD Form 214 to show these corrections.

2.  The applicant states, in effect, his DD Form 214 does not show his correct rank and pay grade and he wants it corrected for his permanent records.  He also states that he was mailed his promotion orders years ago and the orders and envelope shows his rank as SP5.

3.  In support of his application, the applicant provides a copy of his DD Form 214, his promotion orders, and a copy of an envelope from the Department of the Army.

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 record shows he was inducted into the Army of the United States, in pay grade E-1, on 4 March 1969, for 2 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).  

3.  The evidence shows the applicant was promoted to the rank of specialist four (SP4), pay grade E-4, on 20 November 1969 and he was promoted to the rank of SP5, pay grade E-5, on 16 September 1970.

4.  The applicant served in Vietnam from 31 July 1969 through 7 October 1970 with Headquarters and Headquarters Company, 326th Engineer Battalion, 101st Airborne Division.

5.  The applicant was honorably released from active duty, on 7 October 1970, as an overseas returnee.  Item 5a (Grade, Rate or Rank), of his DD Form 214, shows the rank of SP4.  Item 5b (Pay Grade) shows his pay grade to be E-4.  Item 6 (Date of Rank) shows his date of rank to be 20 November 1969.  The applicant was credited with the completion of 1 year, 7 months, and 4 days of net active service.  He was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).

6.  The applicant submits a copy of Headquarters, 101st Airborne Division (Airmobile), Special Orders Number 278, dated 5 October 1970, which announced his promotion to SP5, pay grade E-5, with an effective date of 16 September 1970.  The applicant also submitted a copy of the envelope in which he received the copy of his promotion orders to the rank and pay grade SP5, E-5.  The envelope was addressed to him by the US Army Administration Center, St. Louis, Missouri, and identified him as a SP5.

7.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, provided instructions for the preparation of the DD Form 214.  The regulation states, in pertinent part, that Items 5a, 5b, and 6 would list the rank, pay grade, and the effective date of the individual's promotion or reduction to the rank and pay grade in which the individual was serving on the effective date of separation.

8.  Army Regulation 635-5 currently in effect states, in paragraph 2-7.a.(2), when it is determined that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 (Correction to DD Form 214) or if the correction would required issuance of more than two DD Forms 215, a DD Form 214 will be reissued.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to the rank of SP5, pay grade E-5, with an effective date of promotion of 16 September 1970.  The applicant's promotion orders were not published until 5 October 1970.  The applicant departed from Vietnam on 7 October 1970 to be released from active duty.

2.  The evidence shows he was not provided a copy of his promotion orders prior to his departure from Vietnam.  The DD Form 214 that he was issued shows his rank and pay grade as SP4, E-4, and the effective date of his promotion to be 20 November 1969.

3.  The applicant received orders announcing his promotion to SP5, pay grade 
E-5, with an effective date of his promotion as 16 September 1970, by mail, after he was released from active duty.

4.  Based on the evidence, the applicant is entitled to a correction of his DD Form 214, in accordance with the provisions of Army Regulation 635-5, currently in effect, to show he was released from active duty in the rank of SP5, pay grade E-5, and correction of his date of rank to show he was promoted on 16 September 1970.

5.  The corrections to be made to the applicant's DD Form 214 do not meet the regulatory criteria that would require issuance of a new DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x_____  ____x___  __x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entries that are in Item 5a, Item 5b and Item 6 of the applicant’s DD Form 214;

   b.  adding to Item 5a of his DD Form 214 the rank of “SP5”;

   c.  adding to Item 5b of his DD Form 214 the pay grade of “E-5”;

	c.  adding to Item 6 of his DD Form 214 the date of “16 September 1970; and 

	d.  issuing the applicant a DD Form 215 to show the above corrections.

2.  The Board has further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the issuance of a new DD Form 214.




      _______ _   __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)                                         AR20090001810



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ABCMR Record of Proceedings (cont)                                         AR20090001810



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