IN THE CASE OF:
BOARD DATE: 22 April 2010
DOCKET NUMBER: AR20090017959
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 his applicable military records to show his rank as sergeant (SGT)/pay grade E-5 instead of specialist five (SP5)/pay grade E-5.
2. The applicant, in effect, states he was laterally appointed from the rank of SP5 to the rank of SGT on 5 October 1969. However, this rank was not reflected on either his discharge orders or his discharge certificate in March 1972.
3. As documentary evidence in support of this application, the applicant provides copies of
* special orders, dated 5 October 1969
* a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 26 March 1970
* letter orders, dated 22 March 1972
* DD Form 256A (Honorable Discharge Certificate), dated 23 March 1972
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 U.S. Army Reserve (USAR) on 15 March 1965. He completed basic combat and advanced individual training. Upon completion of training he was awarded military occupational specialty (MOS) 81A (General Draftsman). At a later date he reclassified to MOS 81B (Design Draftsman).
3. The applicant's record contains Headquarters, 411th Engineer Brigade, Fort Tilden, New York, Special Orders Number 43, dated 31 December 1968, showing he was promoted from the rank/grade of specialist four (SP4)/pay grade E-4 to SP5/E-5 with an effective date and date of rank of 31 December 1968.
4. The applicant provides Headquarters, 411th Engineer Brigade, Fort Tilden, New York, Special Orders Number 35, dated 5 October 1969, which show he was laterally appointed from the rank of SP5 to the permanent rank of SGT with an effective date of 6 October 1969 and date of rank of 31 December 1968.
5. The applicant's record is devoid of any evidence he was either subsequently laterally reappointed to SP5 or reduced to a lower rank/grade at any time.
6. The applicant's record contains (and he also provides) U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, Letter Orders Number 03-1124339, dated 22 March 1972, showing he was discharged from the USAR effective 23 March 1972. His rank appears as SP5 on this document.
7. The applicant provides a DD Form 256A, dated 23 March 1972, on which his rank appears as SP5.
8. Army Regulation 614-200 (Enlisted Assignments and Utilization Management) provides guidance on the selection of enlisted Soldiers for assignment, utilization, reclassification, detail, transfer, and training. In pertinent part, it states that commanders (O-5 and above) may authorize lateral appointment of SP5 to SGT without local selection board action provided the Soldier concerned is assigned to an authorized noncommissioned officer (NCO) position in his or her career-progression MOS. This regulation also provides that Soldiers appointed to SGT will retain the grade when reassigned from the NCO position.
9. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 256A. In pertinent part, it states the DD Form 256A will show the Soldier's rank at time of his/her separation.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his records should be corrected to show his rank as SGT instead of SP5 was carefully considered and determined to have merit.
2. Special orders laterally appointed the applicant from SP5 to SGT on 5 October 1969 with an effective date of 6 October 1969 and date of rank of 31 December 1968.
3. The applicant's record is devoid of any evidence he was either subsequently laterally reappointed to SP5 or reduced to a lower rank/grade at any time.
4. Evidence shows the applicant was laterally appointed to and continuously held the rank of SGT until he was discharged. Therefore, he is entitled to correction of his discharge orders and discharge certificate to reflect this fact.
BOARD VOTE:
____X___ ___X____ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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 amending his discharge orders and issuing him a replacement DD Form 256A properly showing his rank as SGT.
____________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) AR20090017959
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ABCMR Record of Proceedings (cont) AR20090017959
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