IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090009618 


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 items 5a (Grade, Rate or Rank) and 5b (Pay Grade) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected.

2.  The applicant states, in effect, that he was promoted to the rank and pay grade of specialist four, E-4, while he served in Vietnam and was serving in that rank and pay grade when he left the service.  He states that his rank was annotated incorrectly on his DD Form 214 and adds that he did not know it could be corrected on his DD Form 214 until he went to a county Veterans Administration Office and a veterans services officer noted the error.

3.  In support of his request, the applicant provided a copy of his DD Form 214.

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 records show the applicant was inducted into the Army of the United States on 10 March 1971.  He completed basic combat training at Fort Ord, California, and his advanced individual training at Fort Belvoir, Virginia.  On completion of his training, he was awarded military occupational specialty 52B (Power Generation Equipment Operator/Mechanic).

3.  The applicant was assigned to the Republic of Vietnam and arrived there on 3 September 1971.  The standard name line on the applicant's orders reassigning him from the U.S. Army Vietnam Transient Detachment to Headquarters and Headquarters Battery of the 108th Field Artillery Group shows the applicant's rank as specialist four.

4.  The applicant did not provide a copy of orders promoting him to specialist four and a search of the applicant's service personnel record failed to reveal any orders promoting him to the rank and pay grade of specialist four, E-4.  There is also no indication in the applicant's service personnel record he was promoted to specialist four and later reduced for misconduct.

5.  On 19 September 1971, Special Orders Number 218 were published reassigning the applicant from Headquarters and Headquarters Battery, 2nd Battalion, 94th Artillery Regiment, to Battery A within the same battalion.  The standard name line in these reassignment orders show the applicant's rank as private first class.

6.  On 3 March 1972, Special Orders Number 59 were published reassigning the applicant from Battery A, 2nd Battalion, 94th Artillery Regiment, to Battery C within the same battalion.  The standard name line in these reassignment orders show the applicant's rank as specialist four.

7.  On 10 April 1972, Special Orders Number 95 were published reassigning the applicant from Battery C of the 2nd Battalion, 94th Artillery Regiment, to the U.S. Army Transfer Station, Fort Lewis, Washington, for the purpose of his release from active duty.  The standard name line on the applicant's reassignment orders indicates he was serving in the rank of private first class.

8.  The applicant's Installation Clearance Record, dated 12 April 1972, on file in his service personnel record shows the applicant's rank and pay grade as specialist four, E-4.

9.  On 18 April 1972, Special Orders Number 109, were published by the U.S. Army Personnel Center, Oakland, California, releasing the applicant from active duty and reassigning him to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining military service obligation.  The standard name line in these orders show the applicant's rank as specialist four.

10.  On 18 April 1972, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining military service obligation under the provisions of Army Regulation 635-200 (Enlisted Separations) as a result of a Headquarters, Department of the Army, Phase-down Release Program.  At the time of his discharge, he had completed 1 year, 1 month, and 9 days of net active service with no time lost.

11.  Item 5a of his DD Form 214 shows the applicant was released from active duty in the rank of private first class.  Item 5b shows the applicant was serving in pay grade E-3 on the date of his release from active duty.

12.  Item 2 (Grade) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the applicant was serving in the rank and pay grade of private first class, E-3.  Item 3 (Date of Rank) shows the applicant attained this rank on 2 July 1971.  Item 33 (Appointments and Reductions) shows the highest recorded rank and pay grade the applicant attained while he served on active duty was private first class, E-3.  The applicant entered active duty on 10 March 1971 in the rank and pay grade of private, E-1; he was advanced to private, E-2, on 1 June 1971; and he was advanced to private first class, E-3, on 12 July 1971.

13.  Orders 02-1035718 were published by the Reserve Components Personnel and Administration Center, St. Louis, Missouri, on 23 February 1977 discharging the applicant from the Standby Reserve.  The applicant was removed from the Standby Reserve in the rank of private first class.

14.  Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's release from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It established standardized policy for preparing and distributing the DD Form 214.  The instructions for the completion of item 5a stated, "Enter grade in which serving at time of separation, indicating whether permanent or temporary."  Instructions for the completion of item 5b stated, "Enter pay grade, e.g., E-8 or E-4."



DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The evidence shows the highest verifiable rank and pay grade the applicant attained while he served on active duty was private first class, E-3.  The applicant was advanced to this rank and pay grade on 2 July 1971 and there are no orders showing he was ever promoted to specialist four while he served on active duty.  There is also no indication in the applicant's service personnel record he was promoted to specialist four and was later reduced in rank for misconduct.

3.  At the completion of his military service obligation on 9 March 1977, the applicant was removed from the Standby Reserve in the rank of private first class.

4.  In view of the foregoing, there is no basis for granting the applicant's request for correction to his DD Form 214 to show he was released from active duty in the rank and pay grade of specialist four, E-4.

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)                                         AR20090009618



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ABCMR Record of Proceedings (cont)                                         AR20090009618



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