IN THE CASE OF:
BOARD DATE: 20 July 2010
DOCKET NUMBER: AR20100001238
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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his promotion to the grade of E-5.
2. The applicant states the following:
* his DD Form 214 shows an incorrect pay grade
* he was promoted to E-5 on 21 June 1971
* he was discharged on 15 July 1971
* his new rank was not documented on his DD Form 214
3. The applicant provides a copy of his DD Form 214 and a memorandum, subject: Recommendation List for Promotion of Enlisted Personnel, dated
21 June 1971.
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 applicants 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 applicants 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 24 July 1969.
3. He was advanced to the rank/grade of specialist four (SP4)/E-4 on 27 April 1970. He was assigned to Vietnam on 17 July 1970.
4. On 21 June 1971, the applicant was selected for promotion to E-5. The promotion list shows the applicants promotion military occupational specialty (MOS) as 17E4O with 520.0 promotion points. The promotion list memorandum specified that promotions would be made from this list by order of merit listing for a given grade and MOS based on MOS cutoff scores received from Department of the Army (DA).
5. The applicant departed Vietnam on 14 July 1971 and he was transferred to Fort Lewis, WA, for separation processing.
6. On 15 July 1971, the applicant was honorably released from active duty in the grade of E-4. Items 5a (Grade, Rate, Rank) and 5b (Pay Grade) of his DD Form 214 show his rank and pay grade as specialist four (SP4)/E-4. At the time of his separation, he had completed 1 year, 11 months, and 22 days of total active military service.
7. The applicant was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) on 16 July 1971 to complete his remaining Reserve obligation. He was subsequently discharged from the USAR on 1 July 1975 as an SP4/E-4.
8. A review of the applicant's official records shows no evidence that he was promoted to the grade of E-5 or that he ever equaled or exceeded a DA announced cut-off score for his MOS before he was released from active duty on 15 July 1971.
9. Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7 (Promotion and Reduction), in effect at the time, governed the promotion of enlisted Soldiers for grade E-3 through E-9. It states, in pertinent part, that promotion of enlisted personnel in grade E-3 through E-9 will be announced in routine orders. For promotion to grade E-5 and E-6, orders will be issued for Soldiers who equal or exceed the DA promotion point cut-off for their MOS. The effective date of promotion is the first calendar day of the month the Soldier is eligible and equals or exceeds the announced DA promotion point cut-off score. It further states that a precondition service obligation is established as 3 months for promotion to grade E-5. Waivers will not be granted.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention regarding his promotion to E-5 is acknowledged. However, there is insufficient evidence to determine that an error or injustice exists in this case.
2. The applicant has failed to show through the evidence submitted with his application and the evidence of record that he ever equaled or exceeded the
DA announced promotion cut-off score for his MOS or that he was promoted to the grade of E-5 prior to his release from active duty.
3. The applicant was recommended for promotion in June 1971 while in Vietnam and he was appropriately placed on the promotion list in his MOS of 17E. He departed Vietnam on 14 July 1971 and he was transferred to Fort Lewis for separation processing. It is unlikely to presume that he would have been promoted before he departed Vietnam or while he was at Fort Lewis prior to his separation. Additionally, he would have incurred a 3-month service obligation upon promotion to E-5, which did not occur.
4. Therefore, in the absence of evidence showing he was promoted to E-5, it must be presumed that what the Army did at the time was correct and in accordance with applicable regulations in effect at the time. The burden of proving otherwise rests with the applicant.
5. 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) AR20100001238
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