IN THE CASE OF:	

		BOARD DATE:	20 August 2009    

		DOCKET NUMBER:  AR20090004620 


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 of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show that he was promoted to the rank/pay grade of sergeant (SGT)/E-5 on 4 December 1969 and that he be awarded all back pay and allowances as a result of this correction.  He also requests that his DD Form 214 be corrected to include all of the awards that he has recently been furnished as a result of a previous decision made by the Army Board for Correction of Military Records (ABCMR) on 15 May 2008.

2.  The applicant states he was selected for promotion to the pay grade of E-5 on 4 December 1969 while he was in Vietnam; however, he was never promoted as he was sent forward to fight at a support base.  He states that he never saw his pay checks; therefore, he never knew that he was not receiving E-5 pay until long after he was gone.  He states that he demands that the pay grade E-5 be included on his DD Form 214 along all of the medals to which the Board has determined he is entitled.  He states that the Board is “redoing” his DD Form 214 to add of his medals that were missing from the DD Form 214 that was originally prepared.  He states that by the Board’s own admission, he was not being paid for his promotion to the pay grade of E-5 although he was selected for promotion in December 1969.

3.  The applicant provides a copy of his DD Form 214; an undated, self-authored statement regarding his entitlement to have his records corrected to show his pay grade as E-5 and to include all of his awards; and page 2 of ABCMR Record of 

Proceedings, dated 15 May 2008, showing that he was recommended for promotion to the pay grade of E-5.

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 requested that his DD Form 214 be corrected to include all of the awards that he had recently been furnished based on the ABCMR decision in Docket Number AR20080003992, dated 15 May 2008.  This decision resulted in correction of the applicant's DD Form 214 with an ending date of 16 October 1970 to delete the Vietnam Service Medal with two bronze service stars and the Army Commendation Medal with one oak leaf cluster; and to add the Good Conduct Medal, Army Commendation Medal with two oak leaf clusters, Vietnam Service Medal with three bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Meritorious Unit Commendation, and the Expert Marksmanship Qualification Badge with Rifle Bar.  On 15 December 2008, the applicant was furnished a DD Form 215 (Correction to DD Form 214) to include these awards.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.  However, a copy of the DD Form 215 will be furnished to the applicant along with these Proceedings.

3.  On 15 January 1969, the applicant was inducted into the Army of the United States in Salt Lake City, Utah.  He successfully completed his training as a supply clerk.  He was promoted to the rank/grade of private (PV2)/E-2 on 15 May 1969 and he was transferred to Vietnam on 30 May 1969.

4.  The applicant was advanced to the rank/grade of private first class (PFC)/E-3 on 19 June 1969 and he was further advanced to the rank/grade of specialist four (SP4)/E-4 on 29 September 1969.  The applicant returned to the Continental United States on 13 June 1970.

5.  On 4 December 1969, the applicant was recommended for promotion to the rank/grade of SGT/E-5.  However, on 16 December 1969, the applicant’s 
commander was notified that his (the applicant’s) recommendation had been evaluated by the 7th Support Battalion Enlisted Promotion Board that convened on 10 December 1969.  The applicant’s commander was told that the results of the board showed that the applicant’s overall board evaluation was not sufficient to merit promotion list standing at that time.

6.  An endorsement, dated 18 December 1969, signed by CPT C______ E. K_______, the applicant's company commander, is contained in the applicant’s official file.  This document indicates that the applicant was informed of the action that was taken and that the recommendation for promotion and the notification of the board’s decision was being filed in the applicant's DA Form 201 (Military Personnel Records Jacket).

7.  On 26 August 1970, the applicant submitted a request for early separation to attend the autumn quarter of the 1970 school year at Weber State College.  His request was approved on 2 September 1970.

8.  On 16 October 1970, the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5, for the convenience of the government, due to early separation to attend school. He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  

9.  A review of the applicant's official records shows no evidence that the applicant was ever promoted to the rank/grade of SGT/E-5 prior to his REFRAD.  

10.  Army Regulation 15-185 (ABCMR) 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 contends that his DD Form 214 should be corrected to show that he was promoted to the rank/grade of SGT/E-5 with entitlement to all back 
pay and allowances as a result of this correction.

2.  His contentions have been noted.  However, his contentions are not substantiated by the evidence of record or by the evidence submitted by the applicant.  The available records show that while he was, in fact, recommended for promotion to SGT/E-5.  The recommendation was evaluated and the promotion board determined that his overall board evaluation was not sufficient to merit promotion list standing at the time.  

3.  The promotion board convened on 10 December 1969 and his commander was informed of the results.  There is also documentation contained in his official record that indicates the applicant was informed of the results of the board on 18 December 1969.  A copy of this documentation will be provided to the applicant along with these Proceedings.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090004620



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ABCMR Record of Proceedings (cont)                                         AR20090004620



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