IN THE CASE OF:	

		BOARD DATE:	  3 August 2010 

		DOCKET NUMBER:  AR20100007202 


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 rank be changed to sergeant/pay grade E-5 on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 17 March 1972.

2.  The applicant states he was appointed to sergeant on 18 October 1971.  He also states the Gallantry Cross with Bronze Star was awarded to him as a sergeant on 31 May 1972.

3.  The applicant provides copies of:

* orders appointing him to acting sergeant, dated 18 October 1971
* authorization for the Gallantry Cross with Bronze Star, dated 31 May 1972
* 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's military personnel records show he was inducted into the Army of the United States on 3 September 1970.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant served in the Republic of Vietnam from 17 February 1971 to 16 February 1972.  He was assigned to Company D, 2nd Battalion, 1st Infantry, from 3 March 1971-11 April 1971.

4.  On 12 April 1971, the applicant was assigned to Company E, 2nd Battalion, 1st Infantry.  Headquarters, 23rd Infantry Division, Special Orders Number 158, dated 7 June 1971, promoted the applicant to specialist four/pay grade E-4 effective 10 May 1971.

5.  Company E, 2nd Battalion, 1st Infantry, 196th Infantry Brigade, 23rd Infantry Division, Unit Orders Number 64, dated 18 October 1971, appointed the applicant to acting sergeant.

6.  On 17 November 1971, the applicant was assigned to Company C, 1st Battalion (Airmobile), 502nd Infantry.

7.  On 17 March 1972, the applicant was released from active duty.  He had completed 1 year, 6 months, and 15 days of active service that was characterized as honorable.  Item 5a (Grade, Rate, or Rank) shows his rank as specialist four.  Item 5b (Pay Grade) shows his pay grade as E-4.  Item 6 (Date of Rank) shows his date of rank as 10 May 1971.

8.  There are no orders in the applicant's military personnel records jacket promoting him to either temporary or permanent sergeant.

9.  Army Regulation 600-200 (Enlisted Personnel Management System), then in effect, stated that company, troop, battery, and separate detachment commanders may appoint qualified individuals as acting corporals/E-4 and acting sergeants/E-5 to serve in position vacancies existing in their units, including those resulting from the temporary absence of an assigned noncommissioned officer (NCO).  Acting NCO's were not entitled to pay and allowances of such higher grades and service as an acting NCO was not to be credited as time in a higher grade for promotion or date of rank purposes.

10.  Appointment of acting NCO's and termination of such status will be announced in orders issued by the appointing authority.  Acting NCO status will be terminated:

* at the discretion of the unit commander who made the appointment
* upon reassignment to another unit
* upon assignment of a regularly-promoted NCO to the position
* when casual groups reach their destination

11.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  This regulation stated that the active duty grade or rank and pay grade at the time of separation was entered in item 5a and item 5b of the DD Form 214.  The effective date of the pay grade was entered in item 6.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his rank and pay grade recorded on his DD Form 214 should be corrected to show he was a sergeant/E-5 with an effective date of 18 October 1971.

2.  The applicant was promoted to specialist four effective 10 May 1971.

3.  While assigned to Company E, 2nd Battalion, 1st Infantry, the applicant was appointed an acting sergeant effective 18 October 1971.  Time served in an acting appointment is not credited as time in a higher pay grade.  At the time the applicant was assigned to Company C, 1st Battalion (Airmobile), 502nd Infantry, his appointment to acting sergeant was terminated.

4.  There are no orders in the applicant's military personnel records jacket promoting him to either the temporary or permanent rank of sergeant.

5.  In view of the above, the information currently entered in items 5a, 5b, and 6 of the applicant's DD Form 214 is correct.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.


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)                                         AR20100007202



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ABCMR Record of Proceedings (cont)                                         AR20100007202



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