IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100009492 


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 items 5a (Grade, Rate or Rank) and 5b (Pay Grade) of his DD Form 214 (Armed Forces of the United States Report of Transfer or discharge) to show his rank/grade as specialist five (SP5)/E-5 instead of specialist four (SP4)/E-4.

2.  The applicant states that he was promoted to E-5.

3.  The applicant provides the following documents:

* a copy of his DD Form 214 for the period ending 26 February 1968
* a copy of Special Orders Number 13, dated 16 January 1968

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 enlisted in the Regular Army in the rank/grade of private (PV1)/E-1 on 16 August 1965 for 3 years.  He initially held military occupational specialty (MOS) 11B (Light Weapons Infantryman) but later held MOS 43E (Parachute Rigger).

3.  On 18 April 1966, 612th Quartermaster Company (Air Delivery), Fort Bragg, NC, published Unit Orders Number 29 appointing him to the rank/grade of private first class (PFC)/E-3 (Permanent (P)).

4.  On 20 January 1967, Special Forces Training Group (Airborne), Fort Bragg, NC, published Unit Orders Number 4 appointing him to the rank/grade of SP4/
E-4 (Temporary (T)).

5.  His records also show he served in Vietnam from on or about 5 July 1967 to on or about 1 November 1967.  He was assigned to Headquarters and Headquarters Company, 5th Special Forces Group (Airborne).

6.  On or about 7 November 1967, he was transferred to Walter Reed Army Medical Center (WRAMC) in a patient status after he suffered an accidental fracture.  He underwent a medical evaluation board that referred him to a physical evaluation board (PEB).

7.  On 22 January 1968, a PEB convened at WRAMC and found his condition rendered him unfit because of physical disability.  The PEB recommended permanent retirement.  The PEB listed his rank/grade as SP4/E-4.

8.  On 19 February 1968, Office of the Adjutant General, Headquarters, Department of the Army, published Special Orders Number 35 announcing his permanent retirement in the rank/grade of SP4/E-4 by reason of physical disability, effective 27 February 1968.

9.  He was honorably retired on 26 February 1968 and placed on the retired list on 27 February 1968 by reason of physical disability.  Item 5a and 5b of his DD Form 214 show the entries SP4 (P) and E-4 respectively and item 6 (Date of Rank) shows the entry 20 January 1967.

10.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he held was SP4/E-4 (T).  His records do not contain official orders promoting him to the rank/grade of SP4/E-4 (P) or to the rank/grade of SP5/E-5 (T) or (P).


11.  He provides a copy of Special Orders Number 13, issued by Headquarters, WRAMC, on 16 January 1968, appointing him to the rank/grade of SP5/E-5 (Temporary) in accordance with paragraph 7-12 of Army Regulation 600-200 (Enlisted Personnel Management).

12.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.

	a.  Items 5a and 5b show the rank/grade in which a member was serving at the time of separation with an indication if permanent or temporary; for example "MSG (T) (Master Sergeant, Temporary), SP4 (P)."

	b.  Item 6 shows the date of rank for the grade shown in item 5a. 

		(1)  If the date of rank is different from the date of appointment, enter the date of appointment in item 30 (Remarks).

		(2)  If the grade at the time of separation is not permanent, the permanent grade, date of appointment, and date of rank, if different from date of appointment will be entered in item 30.

	c.  Item 30 is used to complete entries too long for their respective blocks and/or as a cross-reference.  An entry is made in item 30 with respect to the grade as follows: 

		(1)  If the date of appointment is different from the date shown in item 6, enter date of appointment as follows:  Item 6 - Date of Appointment 15 August 1955.

		(2)  If the grade shown in item 5 is not permanent, enter the permanent grade, date of appointment, and date of rank if different from date of appointment, as follows, "Item 5 - MSG (P) (E-8), Appointed 1 August 1988" or Item 5 - SP5 (T), Appointed 13 September 1958, date of rank 1 August 1958."

13.  Army Regulation 600-200 in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  Promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders.  Unit orders were issued for promotions to grade E-3 and E-4.  
14.  Army Regulation 600-200, paragraph 7-12, pertains to promotion of personnel missing or hospitalized.  It states enlisted personnel otherwise eligible for promotion under this chapter will not be deprived of consideration for such promotion while missing, captured, detained, or hospitalized as a result of hostile action and reportable as a casualty.  The temporary appointment of Regular Army enlisted personnel in grade in which computed from temporary date of rank, on or before 31 July 1968 will automatically become permanent on date of completion of time in grade as follows:  For appointment to E-5, 12-months time in grade and 4-years time in service.  Temporary appointment or promotion to a specialist grade will vacate any permanent appointment in a noncommissioned officer grade.  The individual will become automatically a permanent specialist in the same pay grade as the vacated permanent noncommissioned officer grade.  Similarly, appointment and promotion of a specialist to a temporary noncommissioned officer grade will have no effect on any permanent specialist grade held by the individual.

DISCUSSION AND CONCLUSIONS:

The evidence of record shows that, prior to his retirement by reason of physical disability, the applicant was appointed to the temporary rank/grade of SP5/E-5, effective 16 January 1968.  He was retired on 26 February 1968.  He was appointed to and held the rank/grade of SP5 (T)/E-5 at the time of separation; therefore, he is entitled to correction of his DD Form 214 to show his temporary rank/grade of SP5 (T)/E-5.

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:

	a.  deleting from item 5a from his DD Form 214 the entry "SP4 (T)" and replacing it with the entry "SP5 (T) See item 30,"
	b. deleting from item 5b of his DD Form 214 the entry "E-4" and replacing it with the entry "E-5,"

	c.  deleting from item 6 of his DD Form 214 the entry "20 Jan [January] 1967" and replacing it with the entry "16 Jan [January] 1968," and

	d.  adding to item 30 of his DD Form 214 the entry "Permanent rank/Grade: SP4/E-4, 20 January 1967."



      ________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)                                         AR20100009492



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100009492



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1