BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090006805 


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 correction of his records to show he was promoted to a higher grade.

2.  The applicant states that his general educational diploma (GED) was missing from his 201 file [military personnel records jacket] when he appeared before the promotion board.

3.  The applicant provides the following documents in support of his application:  a supplemental letter, dated 6 March 2009; his GED test scores; a Standing List for Promotion to E-5, dated 23 November 1971; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); two Certificates of Training, dated 10 July 1970 and 17 July 1970; his Associate in Science Degree; and his Bachelor of Science Degree.

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 enlisted in the Regular Army on 10 October 1969 for a period of 3 years.  His DA Form 20 (Enlisted Qualification Record) shows he completed the ninth grade.  He completed basic combat training at Fort Benning, GA, and was reassigned to Fort Rucker, AL, for advanced individual training (AIT) as a petroleum specialist.  He also completed training in military occupational specialty (MOS) 67N as a UH-1 helicopter repairman.  After completion of training, he was assigned to Fort Carson, CO, as a general vehicle repairman.

3.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the applicant was promoted to specialist four (SP4)/E-4 with a date of rank of 8 April 1970.

4.  The applicant was transferred to Vietnam on 2 December 1970 as a UH-1 helicopter repairman with Headquarters and Headquarters Detachment, 21st Signal Group, in Nha Trang.

5.  On 20 November 1971, the applicant was selected for placement on the E-5 promotion standing list.  The promotion standing list was published on 23 November 1971 and the applicant was the 36th person on the standing list in his MOS of 67N with 554.3 promotion points.  The promotion list specified that promotions would be made by cut-off scores as announced by the Department of the Army.

6.  The applicant departed Vietnam on 27 November 1971 and was transferred to Fort Belvoir, VA, for early separation to join a U.S. Army Reserve (USAR) unit.

7.  On 21 March 1972, he was honorably released from active duty in the pay grade of E-4.  He had served 2 years, 5 months, and 12 days of total active service.

8.  The applicant was transferred to the USAR on 22 March 1972 and was discharged on 28 June 1972 in pay grade E-4 in order to join the Army National Guard.

9.  The applicant enlisted in the Army National Guard on 29 June 1972 and continued to serve in the Army National Guard until he was discharged on 1 August 1973 in pay grade E-4.  On the following day, he was transferred to the USAR Control Group (Reinforcement) to complete his remaining Reserve obligation.  He was discharged from the USAR in the rank of SP4/E-4 on 1 October 1975.
10.  A review of the applicant's official records shows no evidence that the applicant was ever promoted to the pay grade of E-5 or that he ever made a Department of the Army announced cut-off score before he was released from active duty on 21 March 1972.

11.  The applicant provided a copy of the U.S. Armed Forces Institute Report of Educational Achievement which shows he completed GED testing (Expression, Social Studies, Natural Science, Literary Materials, and Mathematics) in October 1969 with a total score of 237.

12.  The applicant provided a personal statement in support of his claim.  He gave background information regarding his military career.  He described his efficiency in taking tests upon entry into the Army and that he did not have a high school education.  While in basic training, he passed his GED and graduated second highest in AIT.  The applicant alleged that his GED documents were in his 201 file when he arrived in Vietnam; however, these documents were missing when he went before the promotion board.

13.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7 of the version in effect at the time, governed the promotion of enlisted Soldiers.  In pertinent part, it stated that an individual next in line for promotion would be promoted to fill a vacancy and for whom a promotion quota was received.

14.  Paragraph 7-15 of Army Regulation 600-200, in effect at the time, governed the eligibility and selection criteria for promotion.  This portion of the regulation provided guidance on waivers that could be granted for individuals in an active duty status.  The completion of eighth grade or GED-equivalent for promotion to pay grade E-5 was waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his GED documents were missing from his 201 file when he appeared before the promotion board.  However, the validity of the applicant's claim cannot be determined without the benefit of having the original promotion points worksheets.  Therefore, there is insufficient evidence to determine that an error or injustice exists in his case.

2.  The applicant has failed to show through the evidence submitted with his application and the evidence of record that he was ever promoted to the pay grade of E-5 or that he ever met or exceeded the Department of the Army announced cut-off score for his MOS.

3.  The applicant was recommended for promotion in Novembers1971 while in Vietnam, and he was the 36th person on the standing list in his MOS of 67N.  He departed Vietnam on 27 November 1971 and was transferred to Fort Belvoir.  It is speculative to presume that he would have been promoted before he departed Vietnam or while he was at Fort Belvoir prior to his separation.

4.  Therefore, in the absence of evidence showing he was actually promoted, it must be presumed that what the Army did at the time was correct and in accordance with applicable regulations in effect at the time.  The burden of proving otherwise rests with the applicant.

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)                                         AR20090006805



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ABCMR Record of Proceedings (cont)                                         AR20090006805



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