IN THE CASE OF:
BOARD DATE: 23 September 2010
DOCKET NUMBER: AR20100010374
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) for the period ending 1 November 1969 to show he was permanently appointed to the rank/grade of staff sergeant (SSG)/E-6 at the time he was release from active duty (REFRAD).
2. The applicant states he was promoted SSG - permanent.
3. The applicant provides a copy of the following:
* Special Orders Number 271, published by Headquarters, 3rd Brigade, 82nd Airborne Division, dated 28 September 1969
* his DD Form 214 for the period ending 1 November 1969
* his DD Form 215 (Correction to DD Form 214), dated 2 August 2006
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 17 January 1968 and he completed training as a light weapons infantryman.
3. Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows his appointments as follows:
* PVT E-1 (P) [Permanent], with a date of rank (DOR) of 17 January 1968
* PVT E-2 (P), DOR of 17 May 1968
* CPL E-4 (T) [Temporary), DOR of 1 July 1968
* SGT E-5 (T), DOR of 24 September 1968
* SSG E-6 (T), DOR of 6 September 1969
4. The applicant was honorably REFRAD on 1 November 1969 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his service obligation.
5. Item 5a (Grade, Rate, or Rank) and item b (Pay Grade) of his DD Form 214 shows the entry SSG (T) and E-6.
6. The applicant submitted a copy of Special Orders Number 271. Paragraph 11 shows a Soldier was appointed to the permanent grade of private first class/E-3 with a DOR of 22 September 1969. However, paragraph 12 of the same order shows the applicant, among three other Soldiers, was appointed to the temporary grade of Staff Sergeant, with a DOR of 6 September 1969.
7. A review of the available records does not reveal any evidence showing that he was appointed to the permanent grade of SSG.
8. Army Regulation 635-5 (Separation Documents), in effect at the time, served as the authority for the preparation of the DD Form 214. It provided, in pertinent part, that for items 5a and b, enter the grade in which serving at the time of separation, indicating whether permanent or temporary.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been carefully considered.
2. There is no evidence in the available records and the applicant did not provide any evidence showing he was permanently appointed to the rank of SSG during his tenure of service. The orders he submitted as evidence show he was appointed to the temporary grade of SSG, which is appropriately annotated on his DD Form 214.
3. 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) AR20100010374
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ABCMR Record of Proceedings (cont) AR20100010374
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