BOARD DATE: 24 June 2010
DOCKET NUMBER: AR20090020398
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 item 5a (Grade, Rate or Rank) and item 5b (Pay Grade) of his DD Form 214 (Report of Transfer or Discharge) to show sergeant instead of specialist four.
2. The applicant states:
* his rank should be restored to sergeant since he carried that rank while running the noncommissioned officers club while stationed in Vietnam in November 1968
* upon review of his records while applying for Department of Veterans Affairs benefits, he discovered a discrepancy regarding his rank and pay grade upon discharge from the Army
* there are several documents which show his rank as sergeant, but upon his return to the United States his paperwork shows his rank as sergeant, specialist four, or specialist five
* since he was never demoted from sergeant, he wants to know what happened and if it can be corrected
3. The applicant provides:
* three special orders
* DD Form 1252 (Owner's U.S. Customs Declaration and Entry and Inspecting Officer's Certificate)
* DD Form 1299 (Application for Shipment of Household Goods)
* U.S. Government Bill of Lading
* DA Form 137 (Installation Clearance Record)
* 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 was inducted into the Army of the United States on 21 June 1967. He served as a cargo handler in Vietnam from 5 December 1967 through 4 December 1968. He was released from active duty in the temporary rank of specialist four on 20 June 1969 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.
3. Item 5a of his DD Form 214 shows the entry "SP4 (T) (See 30)." Item 5b of his DD Form 214 shows the entry "E-4." Item 6 (Date of Rank) of his DD Form 214 shows the entry "16 May 68." Item 30 (Remarks) of his DD Form 214 shows the entry "Item 5a: PFC (P) E-3 Aptd 25 Dec 67" indicating he was appointed to the permanent rank of private first class effective 25 December 1967.
4. Headquarters, U.S. Army Support Command Qui Nhon, Special Orders Number 144, dated 23 May 1968, show the applicant was appointed to the temporary grade of specialist four/E-4 effective 16 May 1968.
5. Item 33 (Appointments and Reductions) of the applicant's DA Form 20 shows he was appointed to the temporary rank of specialist four/E-4 effective 16 May 1968.
6. Special Orders Number 139, dated 13 June 1969, show the applicant's rank at the time of his separation was specialist four/E-4.
7. There are no orders showing the applicant was promoted to sergeant in the available records. However, the applicant provided three service personnel records which show his rank as sergeant.
8. Discharge orders, dated 22 May 1973, show the applicant was honorably discharged from the USAR on 1 June 1973 in the rank of specialist four.
9. Army Regulation 635-5 (Separation Documents) prescribes policies and procedures regarding separation documents. This regulation prescribes the grade, rate or rank, held by an individual at the time of his or her separation, indicating whether permanent or temporary, will be entered in item 5a of the DD Form 214. The individual's pay grade will be entered in item 5b of the DD Form 214.
DISCUSSION AND CONCLUSIONS:
Although three service personnel documents show the applicant's rank as sergeant, there are no promotion orders in the applicant's records and he did not provide any evidence showing he was promoted to sergeant prior to his separation. The applicant's 1969 orders releasing him from active duty and his 1973 discharge orders from the USAR show his rank as specialist four. In the absence of promotion orders to sergeant, there is insufficient evidence on which to amend items 5a and 5b of his DD Form 214.
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) AR20090020398
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