IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20090021706 


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 his military records be corrected to show his rank as sergeant (SGT)/E-5.

2.  The applicant states, in effect, he was promoted to pay grade E-5 on 
10 October 1968.  He adds he was a private first class (PFC)/E-3, paid as a specialist (SP4)/E-4 and had papers for SGT/E-5.  He states he went to his battalion commander and the commander had his rank "changed back" to SGT and he was instructed to go to finance and pick-up the difference in his pay.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), orders awarding him the Air Medal with certificate and citation, a Certificate of Appreciation, and a copy of his Reserve orders.

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 he enlisted in the Regular Army on 15 June 1967.  He served 2 years, 11 months, and 4 days on active duty and was honorably released on 23 March 1970.

3.  The applicant's DD Form 214 shows his rank/pay grade SP4/E-4 with his date of rank listed as 10 October 1968.

4.  Item 24 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show award of the Air Medal.

5.  The applicant provided General Orders Number 3418, certificate and citation dated 9 May 1970 that show he was awarded the Air Medal from 12 June to 
19 June 1969 in the Republic of Vietnam for meritorious achievement while participating in aerial flight.  These documents list his rank as PFC/E-3.  However, the rank of "Sergeant" is penciled in.

6.  The applicant provided Special Orders 76, dated 20 March 1970 and a certificate of appreciation dated 23 March 1970 that show his rank as SP4.  The rank of "Sergeant" is penciled in.

7.  Unit Orders Number 77, dated 10 October 1968, show the applicant was promoted to SP4/E-4, effective on this date.

8.  On 12 February 1969, nonjudicial punishment was imposed against the applicant for wrongfully communicating a threat.  His punishment consisted of
14 days of restriction, 14 days of extra duty, and reduction to the pay grade of 
E-3 (suspended for 4 months).

9.  Special Orders Number 128, dated 9 May 1969, show the suspended portion of the applicant's punishment was vacated and he was reduced to pay grade E-3, effective 12 February 1969.  

10.  Unit Orders Number 12, dated 16 February 1970, show the applicant's reduction, previously announced in Special Orders Number 128, dated 9 May 1969, was set aside.  All of the applicant's rights, privileges, and property in which he was deprived were restored.


11.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  The regulation states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Section III, Item 21, requires the preparer to enter the grade in which serving at the time of separation, indicating whether it is permanent or temporary, pay grade, and date of rank in Item 5a, 5b and 6 from the DA Form 20.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was promoted to pay grade E-4 on 
10 October 1968.  On 12 February 1969, he received nonjudicial punishment and as part of his punishment, he received a suspended reduction to the pay grade of E-3 which was vacated on 7 May 1969.  Unit Orders dated 16 February 1970, set aside the applicant's reduction to pay grade E-3 and restored his rank to pay grade E-4 with an effective date of rank of 10 October 1968.

2.  There is no evidence and the applicant did not provide any to show he was promoted to pay grade E-5.  Therefore, in the absence of promotion orders showing he was promoted to the pay grade of E-5 with an effective date of rank, there is no basis to approve his request.

3.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD) as outlined by the Board in paragraph 2 of the 
BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X____  ___X____  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD administratively correct item 24 of his DD Form 214 for the period ending 23 March 1970 to show award of the Air Medal.



      _______ _   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)                                         AR20090021706



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ABCMR Record of Proceedings (cont)                                         AR20090021706



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