DOCKET NUMBER:  AR20090003166 


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 retroactive promotion to sergeant.

2.  The applicant states, in effect, that he received a promotion to specialist/pay grade E-4 after serving for 8 months.  He states he was asked to take over the responsibilities of the Mess Sergeant for the 14th Engineer Battalion and he was promised buck sergeant stripes if he agreed to accept the responsibility of managing the mess hall.  He states he voluntarily transferred to "Cameron Bay" in exchange for the Army sending his wife from New Zealand to the United States. He waited for his promotion orders, but they did not arrive.  The Tet Offensive started and it was chaotic.   He states he spoke to the Veterans Administration (Department of Veterans Affairs) and they approved him getting his sergeant stripes.  He now asks that his grade and rank on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be changed to sergeant.  

3.  The applicant does not provide any 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 military personnel service record shows that he was inducted into the Army of the United States, on 15 August 1966, for a 2-year period of service.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 94B (Cook).  The applicant completed his 2-year service commitment and then was transferred to the U. S. Army Reserve and ordered to active duty for an additional 6-month period of service. 

3.  The applicant's records do show that he received the Purple Heart for wounds inflicted on 5 January 1968.  He received the Vietnam Campaign Medal and the Vietnam Service Medal for his honorable service in the Republic of Vietnam.

4.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he was promoted to private/pay grade E-2 on 16 December 1966; private first class/pay grade E-3 on 16 February 1967; and specialist four/pay grade E-4 (temporary promotion) on 20 May 1968.  

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no order or document that indicates he was recommended or selected for promotion to sergeant/pay grade E-5 during his tenure on active duty.

6.  A review of the applicant's available military personnel record shows two promotion orders:

	a.  Headquarters, 1st Engineer Training Brigade, Fort Leonard Wood, Missouri, Unit Orders Number 7, dated 16 February 1967 appointed the applicant to the permanent grade of private first class/pay grade E-3 effective 16 February 1967; and

	b.  Headquarters, 14th Engineer Battalion (Combat), Army Post Office 96495, Special Orders Number 109, dated 20 May 1968, appointed the applicant to the temporary rank of specialist four/pay grade E-4.


7.  As additional evidence of the applicant's rank, Headquarters, 14th Engineer Battalion (Combat) published Special Orders Number 178, dated 13 August 1968, which ordered the applicant to active duty for an additional active duty commitment.  These orders show that the applicant's permanent grade was private first class/pay grade E-3 with a date of rank of 16 February 1967 and that his temporary grade was specialist four/pay grade E-4 with a date of rank of       20 May 1968.

8.  On 1 March 1969, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).  Item 5a (Grade, Rate or Rank) of the applicant's DD Form 214 issued this date shows his rank as specialist four (temporary) and item 5b (Pay Grade) shows E-4.

9.  Army Regulation 600-200 (Enlisted Personnel Management System) provided in pertinent part, the Army’s policy for enlisted promotions that was in effect at the time of the applicant’s enlistment.  The promotion authority to the grade of 
E-5 through E-9 was reserved for commanders of battalion or any similar or higher echelon organization which was authorized a commander in the grade of lieutenant colonel or higher and when commanded by a field grade officer.  Company commanders had the authority to promote only through the grade of 
E-4.  This regulation authorized promotions to E-4 through E-6 against periodic temporary appointment quota allocations which could not exceed the local pay grade vacancies, major command personnel ceilings or allotted quotas.  Eligibility and selection criteria to sergeant/pay grade E-5 required a Soldier to hold the grade of E-4 for 8 months (known as the time in grade criteria), be recommended by his unit commander, hold an MOS for a valid vacancy authorization, be MOS qualified for the skill level of the next grade (promotion qualification score), occupy a position vacancy in the next higher grade, and be physically qualified to perform MOS duties in the next higher grade.   

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been promoted to sergeant based on the verbal guidance of the battalion mess officer and the evidence of record was carefully considered.  However, there is insufficient evidence to support his claim.  
2.  The evidence of record confirms the applicant was temporarily promoted to the rank of specialist four/pay grade E-4 on 20 May 1968, and that this is the highest rank he attained while serving on active duty.  His record is void of any orders or other documents indicating that he was ever selected or recommended for promotion to a higher grade above specialist four/pay grade E-4 or that he was ever promoted to a higher grade by proper authority while he was serving on active duty.  

3.  The applicant’s DD Form 214 also confirms he held the grade of specialist four/pay grade E-4 (temporary) on the date he was released from active duty.  The applicant authenticated this document with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the DD Form 214, to include his grade and rank, was correct at the time the document was prepared and issued.  

4.  Although the applicant’s active duty service was honorable, and the sacrifices he made for his country were significant, absent any evidence of record that shows he was ever recommended for, or promoted to sergeant/pay grade E-5 by proper authority during his active duty tenure, there is an insufficient evidence to support granting the requested relief at this late date, some 40 years after the fact.  

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)                                         AR20090003166



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ABCMR Record of Proceedings (cont)                                         AR20090003166



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