IN THE CASE OF:	  

		BOARD DATE: 	        2 June 2009

		DOCKET NUMBER:  AR20090001885 


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, correction to item 5a (Grade, Rate, or Rank) and item 5b (Pay Grade) of 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 he was promoted to SGT/E-5 effective 22 November 1968 as shown on Special Orders Number 337, issued by Headquarters, Americal Division, on 2 December 1968; however, his service number was incorrectly shown on the promotion order.  He adds that while he was in the Republic of Vietnam, his commanding officer told him that he was promoted to SGT/E-5 but did not give him written orders at the time.  He remembers getting his last month of pay corrected due to this promotion when he was discharged but does not remember the date all this happened because it was so long ago.

3.  The applicant provides a copy of his DD Form 214, dated 29 November 1968; a copy of Special Orders Number 337, issued by Headquarters, Americal Division, on 2 December 1968; and a copy of his Honorable Discharge Certificate, dated 1 April 1973, 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 12 April 1967 in the rank/grade of private (PV1)/E-1.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

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 30 June 1967 in accordance with paragraph 7-19b of Army Regulation 600-200 (Enlisted Personnel Management System), accelerated advancement.

4.  On 28 August 1967, Company A, 5th Battalion, 3d Training Brigade, Fort Polk, LA, published Unit Orders Number 36 announcing the applicant's promotion to private first class (PFC)/E-3 effective 28 August 1967.

5.  The applicant's records further show that he served in the Republic of Vietnam from on or about 3 December 1967 to 26 November 1968.  He was assigned to Company D, 4th Battalion, 3d Infantry, 11th Infantry Brigade, Americal Division.

6.  On 22 January 1968, Company D, 4th Battalion, 3d Infantry, published Unit Orders Number 2, announcing the applicant's appointment to the temporary grade of SP4 effective 22 January 1968.

7.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he held was that of SP4 (T)/E-4.

8.  On 13 September 1968, Headquarters, Americal Division, published Special Orders 257 awarding the applicant the primary MOS (PMOS) 11B2O and withdrawing the PMOS 11B1O.

9.  On 28 November 1968, Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, published Special Orders Number 333 directing the applicant’s release from active duty effective 29 November 1968.  The standard name line on the orders shows the applicant's rank as SP4.
10.  On 29 November 1968, the applicant underwent a separation medical examination at Fort Lewis, WA.  He completed a Standard Form 89 (Report of Medical History) and listed his rank and MOS as "E-4 11B2O."

11.  The applicant’s records show he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) on 29 November 1968.  Items 5a and 5b of the DD Form 214 he was issued show the entries "SP4 (T)" and "E-4" respectively.

12.  On 2 December 1968, Headquarters, Americal Division, published Special Orders Number 337 awarding the applicant the PMOS 11B4O and withdrawing PMOS 11B2O effective 22 November 1968 in accordance with paragraph 
2-20b(6) of Army Regulation 600-200.  The standard name line on these orders shows the applicant's rank as SGT.

13.  There are no special orders in the applicant’s record that show he was promoted to SGT/E-5.

14.  On 28 January 1970, the Office of the Adjutant General, U.S. Army Administration Center, St. Louis, MO, notified the applicant by letter 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.

15.  Office of the Adjutant General, U.S. Army Administration Center, St. Louis, MO, Letter Orders Number 03-1067451, dated 21 March 1973, relieved the applicant from his obligation in the Standby Reserve of the U.S. Army Reserve Control Group and honorably discharged him effective 1 April 1973.  The standard name line on the letter orders listed the applicant’s grade as "SGT."

16.  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.  Paragraph 2-32 of Army Regulation 600-200 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 a PMOS was mandatory upon withdrawal of a 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 an MOS other than the currently designated PMOS.  In such instances, the MOS in which appointment is made will be designated as the PMOS.

17.  Army Regulation 600-200, chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the promotion of enlisted personnel to grades E-3 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders.  

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 evidence of record shows that at the time of his separation on 29 November 1968, the applicant held the rank/grade of SP4/E-4.  His record is void of any promotion orders to SGT/E-5 and item 33 of his DA Form 20 does not show an entry for a promotion and/or appointment to SGT/E-5.

3.  The evidence of record further shows that on 2 December 1968, after the applicant’s release from active duty, his former headquarters published an order awarding him a higher level MOS effective 22 November 1968.  It is not clear why his record contains his MOS orders, but not his promotion orders.

4.  Nevertheless, promotions of enlisted personnel to grades 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.

5.  If the applicant can provide the promotion orders or evidence that his last month of pay was corrected due to a promotion to pay grade E-5, he may request reconsideration of his request.

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)                                         AR20090001885



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ABCMR Record of Proceedings (cont)                                         AR20090001885



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