IN THE CASE OF:
BOARD DATE: 6 OCTOBER 2009
DOCKET NUMBER: AR20090007776
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 that items 5a (Grade, Rate or Rank) and 5b (Pay Grade) on his DD Form 214 (Report of Transfer or Discharge) for the period ending 4 September 1969 be corrected to show specialist five/E-5 instead of specialist four/E-4.
2. The applicant states, in effect, that he was promoted to specialist five before he was sent to Vietnam in 1968 and that he does not remember what happened to the promotion orders.
3. The applicant provides a DA Form 1341 (Allotment Authorization); a MACV [Military Assistance Command, Vietnam] bank card; copies of three envelopes postmarked 1969; and a copy of his DD Form 214 for the period ending
4 September 1969 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was inducted into the Army of the United States on
13 September 1966. He was honorably discharged on 18 September 1966 for immediate enlistment in the Regular Army (RA). He enlisted in the RA on
19 September 1966 for a period of 3 years.
3. Orders, dated 30 April 1968, show the applicant was promoted to the temporary rank of specialist four.
4. The applicant served as a mechanic in Vietnam from 8 November 1968 to
2 September 1969. On 4 September 1969, the applicant was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.
5. Item 5a on the applicant's DD Form 214 for the period ending 4 September 1969 shows the entry "SP4 (P). Item 5b on this DD Form 214 shows the entry "E4." Item 6 (Date of Rank) on this DD Form 214 shows the entry "25 JAN 69."
6. Discharge orders, dated 4 September 1969, show the applicant's rank is specialist four.
7. Item 33 (Appointments and Reductions) on the applicant's DA Form
20 (Enlisted Qualification Record) shows he was promoted to the temporary rank of specialist four on 30 April 1968.
8. There are no orders which show the applicant was promoted to specialist five in the available records. However, the applicant's service records contain orders for the Good Conduct Medal, dated 30 July 1969, and a DA Form 664 (Serviceman's Statement Concerning Applicant for Compensation from the Veterans Administration), dated 2 September 1969, which show his rank as specialist five.
9. In support of his claim, the applicant provided a DA Form 1341, dated May 1969, a MACV bank card, and envelopes postmarked 1969 which shows his grade as E-5.
10. Discharge orders, dated 23 August 1972, show the applicant was honorably discharged from the USAR on 12 September 1972 in the rank of specialist four.
DISCUSSION AND CONCLUSIONS:
Although there are several documents which show the applicant's rank as specialist five/E-5, there are no promotion orders. The applicant's 1969 orders releasing him from active duty and his 1972 discharge orders from the USAR show his rank as specialist four. In the absence of promotion orders to specialist five, the documentation provided by the applicant which show his rank as specialist five are not sufficient as a basis for amending items 5a and 5b on his DD Form 214 for the period ending 4 September 1969.
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.
_______ _ _XXX______ ___
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) AR20090007776
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ABCMR Record of Proceedings (cont) AR20090007776
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