BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090008548 


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, that his record be corrected to show he held the rank of sergeant (SGT) at the time of his release from active duty (REFRAD). 

2.  The applicant states, in effect, he was promoted to SGT in the Republic of Vietnam (RVN) in July 1969; however, when he was processing for REFRAD, a clerk told him he could get him out the same day if he did not have records, and he threw away his records.    

3.  The applicant provides a leave and earnings statement (LES) for September 1969 and REFRAD orders 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 record shows he enlisted in the Regular Army and entered active duty, on 19 June 1968, and was trained in and awarded military occupational specialty (MOS) 76W (Petroleum Storage Specialist).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 12 October 1968 through 30 September 1969.  Item 33 (Appointments and Reductions) shows he was promoted to specialist four (SP4), on 26 December 1968, and that this is the highest rank he was promoted to while serving on active duty.  

4.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any orders or other documents that indicate he was recommended for, selected for, or promoted to SGT by proper authority while on active duty.  The orders reassigning the applicant to the United States Army Vietnam (USARV) return detachment for further assignment to Fort Lewis, Washington, for separation processing, dated 13 September 1969, lists his rank as SP4.  The order published at Fort Lewis on 30 September 1969, which directed his REFRAD and transfer to the United States Army Reserve (USAR) Control Group listed his rank as SGT in the standard name line.  

5.  On 3 October 1969, the applicant was honorably REFRAD after completing a total of 1 year, 7 months, and 15 days of active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he held the rank of SP4 in item 5a (Grade, Rate or Rank) and item 6 (Date of Rank) shows he attained that rank on 26 December 1968.  

6.  The applicant's MPRJ contains Department of the Army (DA), Office of the Adjutant General (OTAG), United States Army Administration Center (USAAC), St. Louis, Missouri, Letter Orders Number 08-1048673, dated 26 August 1970, which directed the applicant's discharge from the USAR, in the rank of SP4, on 10 September 1970.  It also contains a DA, OTAG, USAAC letter, dated 3 May 1971, signed by the Chief, Corrections Board, Special Actions Division, which responded to an inquiry from the applicant regarding his rank.  It informed the applicant that the order he provided was not a promotion order and that the rank listed on the order could have been an error.  He further indicated that no record was found to show he was ever promoted to SGT and that his records showed at the time of his REFRAD on 3 October 1969 and at the time of his discharge from the USAR on 10 September 1970, he held the grade of SP4.  

7.  The applicant provides a copy of his REFRAD order that lists his rank as SGT in the standard name line and a LES for the period 1-30 September 1969, which lists his pay grade as E-5.  

8.  Army Regulation 600-200 (Enlisted Personnel Management) contained the Army’s policy for enlisted promotions in effect at the time of the applicant's service.  Chapter 7 provided the policies and procedures for enlisted promotions and reductions.  Promotions to the grades of E-4 through E-7 were based on best qualified Soldier to fill unit vacancies and assigned quotas.  Promotions to 
E-4 and E-5 were based on periodic quotas provided to commands and in most cases, the order of merit for these promotions was established through the use of local promotion selection boards.  A promotion had to be authorized by the proper promotion authority, which at the time for E-5 was a field grade commander in the grade of lieutenant colonel. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to show he held the rank of SGT at the time of his REFRAD was carefully considered.  However, the governing regulation in effect at the time provided for promotions to E-5 based on the best qualified Soldier to fill unit vacancies and assigned quotas. The order of merit for these promotions in most cases was established through local promotion boards and promotions had to be authorized by a field grade commander in the rank of lieutenant colonel.  

2.  In this case, the evidence of record is void of any indication that the applicant was recommended for promotion to SGT by a local board and/or that he was promoted by the proper command authority during his active duty tenure.  His 
DA Form 20 indicates he was promoted to SP4, on 26 December 1968, and that this is the highest rank he was promoted to while serving on active duty.  The orders reassigning him to the USARV reassignment detachment for further movement to Fort Lewis, Washington, for separation also list his rank as SP4, which confirms this is the rank he held when he left his unit in the RVN.  Further, his DD Form 214 shows he held the rank of SP4 at the time of his REFRAD, on
3 October 1969.  His USAR discharge orders show he held that rank at the time of his discharge from the USAR on 10 September 1970.  

3.  Finally, an OTAG review completed in May 1971, confirmed there were no documents or entries in his record that showed he was ever recommended or selected for, or promoted to SGT by proper authority while serving on active duty. As a result, absent any evidence of record corroborating the information contained on the orders and LES provided by the applicant, there is an insufficient evidentiary basis to support granting the requested relief.

4.  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 this 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)                                         AR20090008548



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ABCMR Record of Proceedings (cont)                                         AR20090008548


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