IN THE CASE OF:
BOARD DATE: 28 September 2010
DOCKET NUMBER: AR20100011420
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 of Discharge) to show his correct rank.
2. The applicant states that his DD Form 214 incorrectly lists his rank as specialist four (SP4/E-4) instead of specialist five (SP5/E-5).
3. The applicant provides the following in support of his application:
* Winnebago County Department of Veterans Services Letter
* Promotion Order
* 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 19 March 1968. He was trained in and awarded in military occupational specialty 31B (Field Radio Mechanic).
3. Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was last promoted to SP4 on 15 January 1969.
4. On 26 October 1969, Headquarters, United States Army Personnel Center, Fort Lewis, Washington, published Orders Number 299. These orders directed the applicant's release from active duty in the rank of SP5 on 26 October 1969.
5. The applicants Official Military Personnel File (OMPF) includes a Standard Form 89 (Report of Medical History), his separation examination, and a DA Form 137 (Installation Clearance Record) dated 26 October 1969. Both of these documents list the applicants rank as SP5.
6. On 26 October 1969, the applicant was released from active duty under the provisions of chapter 5, Army Regulation 635-200 (Personnel Separations). The DD Form 214 issued to him at that time lists his rank as SP4 in item 5a (Grade, Rate, or Rank); his pay grade as E-4 in item 5b (Pay Grade); and his date of rank as 15 Jan 69 in item 6 (Date of Rank).
7. On 28 October 1969, Headquarters, 4th Infantry Division, published Special Orders Number 301. This order announced the applicants promotion from SP4 to the temporary rank of SP5 effective 17 October 1969.
8. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It also establishes standardized policy for preparing and distributing the DD Form 214. Paragraph 2-4h(4) states to enter the grade in which serving at the time of separation, indicating whether permanent (P) or temporary (T) in item 5a; enter the pay grade in item 5b; and enter the date of rank for the grade shown in item 5a in item 6.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his rank and grade should be corrected to show SP5/E-5 on his DD Form 214.
2. By regulation, the active duty rank and pay grade at the time of separation will be entered in item 5a and item 5b of the DD Form 214 and the effective date of rank for the rank shown in item 5a will be entered in item 6. The available evidence confirms the applicant was promoted to the rank and grade of SP5/E-5 effective 17 October 1969 in official orders that were published subsequent to his 26 October 1969 REFRAD. Therefore, his DD Form 214 should be corrected at this time to show the following entries:
* item 5a SP5 (T)
* item 5b E-5
* item 6 17 October 1969
BOARD VOTE:
____X___ ____X___ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined 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 amending the applicant's DD Form 214 by deleting the current entries in item 5a, 5b, and item 6; adding the entry "SP5" to item 5a, "E-5" to item 5b, and
"1969 10 17" to item 6; and by issuing a correction to the DD Form 214 to reflect these changes.
_______ _ __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) AR20100011420
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ABCMR Record of Proceedings (cont) AR20100011420
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