IN THE CASE OF:
BOARD DATE: 23 November 2010
DOCKET NUMBER: AR20100013730
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, in effect, item 5a (Grade, Rate, or Rank) and item 5b (Pay Grade) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 9 February 1968 be corrected to show sergeant/E-5 instead of specialist four/E-4.
2. The applicant states:
* his DA Form 20 (Enlisted Qualification Record) shows his pay grade as
E-5
* he did not receive notification of his promotion to E-5
* he did not receive pay as an E-5 in 1968
* the rank of E-5 was not entered on his DD Form 214 at the time of his separation in 1968
* he does not have a promotion certificate in his possession
3. The applicant provides:
* DD Form 214 for the period ending 9 February 1968
* DA Form 20
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 was inducted into the Army of the United States on 11 February 1966. He was awarded military occupational specialty 94B (cook). On 9 February 1968, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.
3. Item 5a of the applicant's DD Form 214 for the period ending 9 February 1968 shows the entry "SP4 (P)" [specialist four (permanent)]. Item 5b of his DD Form 214 shows the entry "E-4." Item 6 (Date of Rank) of his DD Form 214 shows the entry "18 Dec 66" [18 December 1966].
4. Separation orders show the applicant's rank as specialist four.
5. Item 33 (Appointments and Reductions) of the applicant's DA Form 20 shows he was appointed to the rank of specialist four effective 18 December 1966.
6. There is no evidence of record which shows the applicant was promoted to sergeant prior to his release from active duty on 9 February 1968.
7. The applicant was honorably discharged from the U.S. Army Reserve on 30 October 1968 in the rank of specialist four.
8. In support of his claim, the applicant provided his DA Form 20 which shows his principal duty was "First Cook (E-5)" during the period 5 December 1967 to 8 February 1968 in item 38 (Record of Assignments).
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he did not receive notification of his promotion to E-5, he did not receive pay as an E-5 in 1968, he does not have a promotion certificate in his possession, and the rank of E-5 was not entered on his DD Form 214 at the time of his separation in 1968.
2. The preponderance of evidence of record shows the applicant was a specialist four/E-4 at the time of his release from active duty on 9 February 1968, which is properly reflected in items 5a and 5b of his DD Form 214.
3. There is no evidence of record which shows the applicant was promoted to sergeant/E-5 prior to 9 February 1968. In the absence of promotion orders to sergeant/E-5, the entries shown on the applicant's DA Form 20 indicating his principal duty was "First Cook (E-5)" (which only meant he was assigned to an E-5 duty position, not that he had been promoted to E-5) are not sufficient as a basis for amending items 5a and 5b of the applicant's DD Form 214 for the period ending 9 February 1968.
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) AR20100013730
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ABCMR Record of Proceedings (cont) AR20100013730
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