IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090014160 


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 the rank/grade shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states he was promoted to the rank of specialist four (SP4)/pay grade E-4, but this rank/grade is not recorded on his DD Form 214.  He adds that he just recently discovered the error while applying to the Department of Veterans Affairs (VA) for benefits.

3.  The applicant provides, in support of his application, copies of his DD Form 214 and three award documents.

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 was inducted into the Army of the United States and entered active duty on 10 May 1971.  Upon completion of training, he was awarded military occupational specialty 52D (Gas Turbine and Generator Operator).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 2 (Grade) the entry "PFC" (i.e., private first class);

   b.  item 3 (Date of Rank) the entry "710924" (i.e., 24 September 1971);

   c.  item 33 (Appointments and Reductions), in pertinent part, that he was promoted to PFC/E-3 with a date of rank (DOR) of 24 September 1971 per Headquarters, U.S. Army Engineer School Brigade [Fort Belvoir, Virginia], Special Orders Number 236, paragraph 45; and

	d.  item 47 (Signature of Individual) that the applicant, on 3 February 1973, placed his signature on the document, along with the entry "E-4."

4.  A DA Form 2166-4 (Enlisted Evaluation Report) for the period beginning October 1972 and ending January 1973 shows in Part I (Personal Data) the applicant's rank was "SP4," his grade was "E4," and his DOR was 9 July 1972.
This document also shows it was signed by the applicant on 3 February 1973.

5.  Headquarters, U.S. Army Support Element, Military Region I, General Orders Number 139, dated 3 February 1973, awarded the applicant the Good Conduct Medal for the period 10 May 1971 to (date of separation on or about)
25 February 1973, and shows the applicant's rank at the time was SP4.

6.  Headquarters, U.S. Army Personnel Center, Oakland, California, Special Orders Number 037, dated 6 February 1973, released the applicant from active duty, effective 6 February 1973, and shows the applicant's rank at the time was SP4.

7.  The applicant's DD Form 214 shows he was honorably released from active duty (REFRAD) on 6 February 1973 and transferred to the U.S. Army Reserve (USAR) to complete his Reserve obligation.  At the time he had completed
1 year, 8 months, and 27 days of net service.  It also shows in item 5a (Grade, Rate or Rank) the entry "PFC," in item 5b (Pay Grade) the entry "E-3," and in item 6 (Date of Rank) the entry "24 Sep 71."

8.  Headquarters, Office of The Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, Missouri, Letter Orders Number 04-1064438, dated 28 April 1976, honorably discharged the applicant from the USAR Control Group (Standby Reserve), effective 1 May 1976, and shows the applicant's rank at the time was "PFC."

9.  There are no orders or other evidence in the applicant's military personnel records that shows he was reduced in rank/grade from SP4/E-4 subsequent to
9 July 1972 and prior to the date he was discharged from the USAR.

10.  In support of his application, the applicant provides the following documents:

   a.  Headquarters, First Regional Assistance Command, General Orders Number 625, dated 26 December 1972, and The Army Commendation Medal Citation that awarded the applicant the Army Commendation Medal for meritorious service from February 1972 to February 1973.  These documents also show, at the time, the applicant was serving in the rank of SP4.
   
   b.  Headquarters, U.S. Military Assistance Command, Vietnam, letter, dated 19 February 1973, subject:  Authorization for Individual Foreign Award, that forwarded the Republic of Vietnam Armed Forces Honor Medal, Second Class, to the applicant.  This document also shows the applicant's rank was SP4.

11.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures regarding separation documents.  It also establishes standardized policy for preparing and distributing the DD Form 214.  This Army regulation states that the purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.  It provides in:

   a.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.

   b.  Paragraph 23 (Item 5a - Grade, Rate or Rank; Item 5b - Pay Grade, and Item 6 - Date of Rank) states, "Self-explanatory."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214 should be corrected to show he was REFRAD in the rank of SP4/E-4 with a DOR of 9 July 1972 because he held that rank when he was separated from active duty and also at the time he was discharged from the USAR.
2.  The evidence of record shows the applicant held the rank/grade of SP4 (E-4) with a DOR of 9 July 1972.  In addition, general orders that were issued subsequent to 9 July 1972 that awarded him the Army Commendation Medal and Good Conduct Medal show his rank was SP4.

3.  There is no evidence the applicant was reduced from the rank/grade of SP4/E-4 at any time subsequent to 9 July 1972.

4.  Special orders released the applicant from active duty on 6 February 1973 in the rank of SP4 and transferred him to the USAR.  However, his DD Form 214 indicates he was separated in the rank/grade of PFC/E-3 with a DOR of
24 September 1971.  Thus, based on a preponderance of evidence, it is concluded that the applicant's DD Form 214 is incorrect with respect to his rank, grade, and DOR.  Therefore, it would be appropriate to correct his DD Form 214 to show the correct rank, grade, and DOR.

5.  Letter orders discharged the applicant from the USAR on 1 May 1976 in the rank of PFC.  Based on a preponderance of evidence, it is also concluded that the applicant's discharge order is incorrect with respect to his rank.  Therefore, it would be appropriate to correct the applicant's records by amending his discharge orders to show he was discharged in the rank of SP4.

BOARD VOTE:

___X___  ____X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting his DD Form 214 by:

   a.  deleting from item 5a the entry "PFC," from item 5b the entry "E-3," and from item 6 the entry "24 Sep 71";

   b.  adding to item 5a the entry "SP4," to item 5b the entry "E-4," and to item 6 the entry "9 JUL 72"; and

	c.  amending Headquarters, U.S. Army Reserve Personnel Center, St. Louis, Missouri, AGUZ-PAD-R, Letter Orders Number 04-1064438, dated 28 April 1976, to show the applicant's rank at the time of his discharge on 1 May 1976 was SP4.

2.  As a result of this correction, the U.S. Army Human Resources Command,
St. Louis, Missouri, should also issue the applicant a corrected DD Form 256A (Honorable Discharge Certificate).



      _______ _   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)                                         AR20090014160



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ABCMR Record of Proceedings (cont)                                         AR20090014160



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