IN THE CASE OF:	 

		BOARD DATE:	    28 October 2010

		DOCKET NUMBER:  AR20100011324 


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 Discharge or Transfer) to show the rank/pay grade of staff sergeant (SSG)/E-6.

2.  The applicant states he was promoted to SSG while serving with the 25th Infantry Division in Vietnam.  He contends his DD Form 214 does not show the correct rank.

3.  The applicant provides a notarized personal letter from 
Mr. W____ L. B____, dated 22 February 2010, and a copy of his 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 service records show that he was inducted into the Army on 11 September 1968.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).

3.  A copy of his DA Form 20 (Enlisted Qualification Record) shows while serving in Vietnam, he was assigned to Battery C, 2d Battalion, 77th Artillery, 25th Infantry Division, during the period 6 April 1969 through 21 April 1970.  Item 33 (Appointments and Reductions) of this form indicates his rank at the time was sergeant (SGT)/E-5 (Permanent (P)) with a date of rank (DOR) of 9 December 1969.

4.  His DD Form 214 shows he was honorably released from active duty (REFRAD) on 21 April 1970 after completing 1 year, 7 months, and 11 days of total active service.  Item 5a (Grade, Rate, or Rank) of this document contains the entry "specialist five (SP5)," Item 5b (Pay Grade) contains the entry "E-5," and Item 6 (Date of Rank) contains the entry "9 December 1969."  It also shows his MOS as 13B4O.

5.  Item 38 (Record of Assignments) of his DA Form 20 shows he was assigned to Company B, 1st Battalion, 152nd Infantry, Linton, IN on 22 April 1970.  Item 33 shows he was promoted to the rank of SSG on 5 September 1972.  Special Orders Number 30, dated 5 September 1972, confirm his DOR to SSG as 5 September 1972.

6.  A copy of a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service in the Army National Guard) shows he was honorably discharged from the Army National Guard on 3 October 1972 and reverted to U.S. Army Reserve (USAR) control to complete his remaining Reserve obligation.  This form shows in item 3 (Grade), the entry "SSG."  Item 29 (Highest Grade Held) also shows the entry "SSG."

7.  The applicant submitted a letter from Mr. W____ L. B____.  Mr. B____ certified that the applicant was promoted to SSG/E-6 on or about 19 December 1969.  He claims he saw the applicant's name on the promotion roster.

8.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7 (Promotion and Reduction), in effect at the time, prescribed the policies and procedures governing promotion, reduction, and lateral appointment of all enlisted personnel on active duty, other than active duty for training.  Paragraph 7-3 (Orders) stated that permanent promotions, lateral appointments, and grade reductions of enlisted personnel to all grades above E-3 will be announced in orders.
9.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains the guidance on the preparation of the DD Form 214.  It states that the source documents for entering information on the DD Form 214 will be the Enlisted/Officer Qualification Record or any other document authorized for filing in the military personnel records jacket (MPRJ) or official military personnel file (OMPF).

10.  Paragraph 2-7 (Preparation instructions) of Army Regulation 635-5 provides item-by-item instructions for completing the DD Form 214.  The instructions for item 5a and item 5b are to enter the grade and pay grade at the time of separation.  The instructions for item 6 are to enter the date of rank for the grade shown in item 5a.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the rank, pay grade, and date of rank shown on his DD Form 214 should be corrected because he was promoted to SSG/E-6 on 19 December 1969.  A personal letter submitted in support of his application also contends the applicant's name was on the promotion roster, with an effective date of 19 December 1969.

2.  The evidence of record shows that the applicant was promoted to the rank of SGT on 9 December 1969.  The evidence of record also shows on 5 September 1972 he was promoted to the rank of SSG while serving with the 152nd Infantry in Linton, IN.

3.  There is no evidence of record to show that the applicant was promoted to the rank of SSG prior to 5 September 1972 and the applicant provides insufficient evidence to show differently.  Absent any evidence, there is an insufficient evidentiary basis to provide the requested relief.

4.  However, the applicant's DA Form 20 shows he had been promoted to SGT.  His DD Form 214 shows he separated as an SP5; however, the MOS shown on his DD Form 214 is 13B4O.  The "4" skill level was a noncommissioned officer skill level, indicating he was indeed an SGT rather than an SP5.  His DD Form 214 should be corrected to show his rank as SGT.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 5a of his DD Form 214 to show his rank as "SGT."

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending item 5a of his DD Form 214 to show his rank as "SSG."



      __________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)                                         AR20100011324



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ABCMR Record of Proceedings (cont)                                         AR20100011324



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