IN THE CASE OF:	  

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090016291 


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 promotion to Sergeant First Class (SFC)/E-6 with an effective date of 21 November 1957 and that his records be updated accordingly.

2.  The applicant states, in effect, that he was denied promotion to SFC because he was single.  It was explained to him that it would be better to help out the married guys and he believed that to be standard practice.  The applicant would like to place emphasis on the following points:

* He contends that he was denied promotion to SFC three times in favor of married Soldiers.  He states that on two of these occasions, the promotion went to Soldiers who had been reduced, one of whom he had seniority over
* He remained on duty at Kagnew Station for 3 years and 8 months when the tour only called for 2 years
* He worked as a supervisor for 6 months at a field location in Ghinda, a remote location about 50 kilometers east of Asmara in Ethiopia that is hot, 
bug-infested, and a miserable place to be
* He was the senior ranking enlisted man in the operations company for nearly 2 years.  There were no other unmarried SFCs in the unit
* After 4 years and 8 months of active duty, he was released from active duty (REFRAD) and transferred to the Reserve Component of the Army.  After completing his 8-year service obligation he was given an honorable discharge on 28 April 1961 with the rank listed as SP5.  He contends that he has no idea what a SP5 is
* He got married about a year and a half after returning home from Africa.  He contends that this should give him the required status for the requested recognition and promotion

3.  The applicant provides a self-authored letter written to the Chief, Congressional and Special Actions Division, Army Review Boards Agency, dated 29 August 2009; a self-authored extract from a letter written to General Casey, dated 31 August 2009; a DA Form 1270 (Transfer or Release to Reserve Component of the Army); a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); and a copy of his honorable discharge certificate.

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 military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 shows that he enlisted in the Regular Army (RA) on 30 March 1953 and he served in military occupational specialty 058.20 (Morse Interceptor) with Operations Company, 4th U.S. Army Security Agency (USASA).  This form also shows his rank as Specialist 2 (T) [temporary] with a date of rank of 19 December 1955.  His character of service was honorable. 

4.  A copy of the applicant's DD Form 4 (Enlistment Record - United States) indicates he reenlisted in the RA on 7 December 1954 for a period of 3 years.
5.  A copy of the applicant's DA Form 24 (Service Record) shows in section I (Appointments, Promotions, or Reductions) that he attained the following rank with accompanying effective dates:

* Private E-1 (Permanent) (P), effective 30 March 1953
* Private E-2 (P), effective 3 August 1953
* Private First Class E-3 (T), effective 17 May 1954
* Corporal E-4 (T), effective 26 October 1954
* Specialist 3rd Class E-4 (T), effective 1 July 1955
* Specialist 2nd Class E-5 (T), effective 19 October 1955

6.  A copy of a noncommissioned officer (NCO)/specialist program appointment letter, dated 13 March 1957, states the applicant's personnel records indicated he converted to a specialist status on or about 1 July 1955; however, there was no record of his acceptance or declination of the rank designation.  The letter goes on to state the applicant is required under the provisions of Army Circular 611-27 (Erroneous NCO/Specialist Conversions and Appointments) to acknowledge this action.

7.  A copy of a letter, dated 29 March 1957, outlining the results of the Enlisted Member (EM) Classification Board, states after due consideration of the applicant's request for restoration of an NCO status, the Kagnew Enlisted Classification Board recommended continued specialist status, and the action was final and all required entries were made in his service record.

8.  Special Orders Number 324, issued by Headquarters, U.S. Army Personnel Center, Fort Dix, NJ, dated 20 November 1957, shows the applicant was REFRAD on 22 November 1957 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  

9.  Special Orders Number 77, issued by Headquarters, Second U.S. Army, Fort George G. Meade, MD, dated 16 April 1960, shows the applicant was transferred from the Ready Reserve to the Standby Reserve effective 16 April 1960.  He was released from assignment to the 2131st USAR Control Group (Reinforcement), Annville, PA.

10.  A copy of a letter, dated 1 May 1961, removed the applicant from the USAR Control Group (Standby) and released him from assignment by reason of discharge with an effective date of 28 April 1961.


11.  Army Regulation 624-200 (Promotions, Demotions, and Reductions -  Appointment and Reduction of Enlisted Personnel), in effect at that time, states that local appointment authorities are authorized to effect the temporary appointment of qualified personnel against local grade vacancies subject to major command appointment ceilings and such monthly appointment quotas.  The Department of the Army allocates appointment quotas each month to commanders of major commands and heads of administrative and technical services to fill all cumulative grade vacancies in the Army.  To become eligible for temporary appointment, enlisted personnel must complete the time in grade and time in position vacancy requirements set forth in the following table:

For appointment to…
Time in pay grade
Time in position vacancy in recommending unit (months)
Master Sergeant (MSgt)
12 months in E-6
2
Sergeant First Class (SFC)
10 months in E-5
2
Sergeant (Sgt)
8 months in E-4
2
Corporal  (Cpl)
6 months in E-3
2
Master Specialist (MSP)
12 months in E-6
2
Specialist 1st Class (SP1)
10 months in E-5
2
Specialist 2nd Class
8 months in E-4
2
Specialist 3rd Class
6 months in E-3
2
Private First Class (PFC)
4 months in E-2
2
12.  Army Regulation 624-200 states commanders designated as appointment authorities are authorized to permanently appoint Regular Army personnel who meet the eligibility requirements above who are recommended by their immediate commander.  Appointments will not exceed quotas allotted semiannually by Headquarters, Department of the Army.  Only a Soldier serving in a temporary NCO grade may be appointed to permanent NCO grade, and then only if his primary military occupational specialty provides for such status in the permanent grade.

13.  DA Message 344303, June 1958, added and restructured the titles of various enlisted rank structure.  The pay grade of E-5 was designated as either the rank of specialist five (SP5) or sergeant (SGT).

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he was a victim of discrimination due to his marital status.  He contends that because he was single, he was not selected for 


promotion to SFC/E-6 on three separate occasions.  The applicant also states 
that he does not know what rank a SP5 is.  The applicant's contentions have been noted; however, there is no evidence in the available record nor has the applicant submitted any evidence to substantiate his contention that he was unfairly treated and discriminated against for promotion.

2.  The applicant's records show he was temporarily promoted to SP2/E-5, effective 19 October 1955.  In accordance with Army Regulation 624-200, he was eligible for temporary promotion to SFC/E-6 with an effective date of 19 August 1956.  However, due to the absence of military records, it is uncertain if he was even recommended for promotion by his immediate commander.  In the absence of evidence to the contrary, it must be presumed that his immediate commander did not recommend him for promotion for reason(s) unknown.

3.  The applicant's discharge letter from the USAR lists his rank as SP5/E-5.  DA Message 344303, dated June 1958, restructured the rank of SP2 to SP5.  The applicant's REFRAD took place after this policy went into effect; therefore, the rank of SP5 is correct as shown.

4.  While the applicant's decision to stay in Ghinda as a supervisor for 6 months and work beyond the call of duty is commendable the decision to promote a Soldier rests with the promotion authority or designated representative.  The fact that two other E-5s were promoted to E-6 with less time in grade than the applicant and the fact that they were married does not necessarily demonstrate an error or an injustice on the part of the Army.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090016291



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ABCMR Record of Proceedings (cont)                                         AR20090016291



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