BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100013353 


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 rank/grade at the time of his separation from specialist four (SP4)/E-4 to sergeant (SGT)/E-5.

2.  The applicant states, in effect, his commander recommended him for promotion while in Vietnam, but was not able to travel to the applicant's location to conduct the ceremony.  He should have received the pay increase with back pay effective when the recommendation memorandum was signed by the commander in accordance with Army policy.

3.  The applicant provides copies of an unsigned memorandum, a DD Form 1725 (Certificate of Appreciation), and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 record shows he was inducted into the Army of the United States on 18 August 1969 in the rank/grade of private/E-1.  Records show he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76V (Equipment Storage Specialist).

3.  His records further show that upon successful completion of basic combat training, he earned an accelerated promotion to the rank/grade of private/E-2 effective 17 October 1969 in accordance with paragraph 7-19b of Army Regulation 600-200 (Enlisted Personnel Management System).

4.  On 20 January 1970, the U.S. Army Quartermaster School Brigade, Fort Lee, VA, published Special Orders Number 13 Extract announcing his promotion to the rank/grade of private first class/E-3 in primary MOS 76V2O effective 20 January 1970.

5.  On 23 January 1970, the U.S. Army Quartermaster School Brigade published Special Orders Number 16 Extract announcing his promotion to the rank/grade of SP4/E-4.

6.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he held while serving on active duty was that of SP4/E-4.

7.  His records show he served in the Republic of Vietnam from 31 May 1970 to 23 April 1971 while assigned to Troop Command, U.S. Army Depot Qui Nhon.

8.  On 20 November 1970, Company A, Troop Command, U.S. Army Depot Qui Nhon, published Unit Orders Number 58 announcing the applicant's appointment as an acting noncommissioned officer (NCO) in the rank/grade SGT/E-5.

9.  On 13 February 1971, Headquarters, U.S. Army Depot Qui Nhon, published Assignment Memorandum Number 22 Extract announcing his reassignment from Company A, Troop Command, U.S. Army Depot, to Security Guard Company, Troop Command, U.S. Army Depot, effective 15 February 1971.  The standard name line on these orders shows his rank as SP4.

10.  His records show he was honorably released from active duty on 27 April 1971and transferred to the U.S. Army Reserve Control Group (Annual Training).  Items 5a and 5b of the DD Form 214 he was issued show the entries "SP4" and "E-4" respectively.

11.  There are no special orders in the applicant's record that show he was promoted to SGT/E-5.

12.  The applicant provides a copy of an unsigned memorandum, dated 5 February 1971, from the commander of Company A, Troop Command, U.S. Army Depot Qui Nhon, to the commander of Troop Command, U.S. Army Depot Qui Nhon, wherein he recommends the applicant be promoted to the rank/grade of SGT/E-5.

13.  He also provides a copy of a DD Form 1725 and a copy of his DD Form 214.

14.  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.  It stated that commanders may appoint qualified Soldiers as acting sergeants/E-5 to serve in vacant positions in their units at their present or higher grade and that acting NCO's are not entitled to pay and allowances for such higher grades.  In addition, it stated the promotion of enlisted personnel to grades E-3 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders.  Field grade commanders in the rank of lieutenant colonel or higher could promote to E-5.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank and grade should be corrected to show SGT/E-5 instead of SP4/E-4.  There is insufficient evidence to support this contention.

2.  The evidence of record shows that at the time of his separation on 27 April 1971, he held the rank/grade of SP4/E-4.  His record is void of any promotion orders to SGT/E-5 and item 33 of his DA Form 20 does not show an entry for promotion to SGT/E-5.

3.  He provides an unsigned memorandum wherein his commander recommended him for promotion to SGT/E-5.  However, there is no evidence the recommendation was ever submitted or processed.  In addition, promotions of enlisted personnel to grades E-3 through E-9 were announced in routine orders.  His commander merely recommended him for promotion, he was not the promotion authority.

4.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20100013353



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013353



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1