IN THE CASE OF:
BOARD DATE: 30 November 2010
DOCKET NUMBER: AR20100014860
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 7 June 1970 to show his rank and pay grade as sergeant (SGT)/E-5.
2. The applicant states that his current DD Form 214 is incorrect because he was promoted to SGT/E-5 prior to leaving Vietnam in June 1970.
3. The applicant provided copies of his DD Form 214 and Special Orders Number 157, Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, dated 6 June 1970.
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 enlisted in the Regular Army on 17 August 1967. Records show he completed basic combat and advanced individual training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).
3. The applicant was promoted to the rank of SGT by Special Orders Number 90, issued by Headquarters, 4th Infantry Division, on 31 March 1970, with an effective date of 15 March 1970. The record copy of this order is an extract and is missing the promotion authority's signature or authentication.
4. Special Orders Number 157, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, dated 6 June 1970, released the applicant from active duty and transferred him to the U.S. Army Reserve (USAR) Control Group (Reinforcement). The applicant's rank on this order is SGT.
5. Numerous record documents, specifically a DD Form 1407 (Dependent Medical Care and DD Form 1173 Statement), DA Form 137 (Installation Clearance Record), DA Form 1811 (Physical and Mental Status on Release from Active Service), and DA Form 2376 (Notification of State Adjutants General Release from Active Duty of Obligated Reservist), dated at the time of the applicant's release from active duty all refer to the applicant's rank as SGT.
6. On 7 June 1970, the applicant was honorably released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 5, and transferred to the USAR Control Group (Reinforcement). He completed a total of 2 years, 9 months, and 21 days of creditable active service. The applicant's DD Form 214, item 5a (Grade, Rate, or Rank), item 5b (Pay Grade), and item 6 (Date of Rank), show his rank, pay grade, and date of rank at the time of his separation were specialist four, E-4, and 21 June 1968, respectively.
7. Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. In pertinent part, it directed that in item 5a to enter the rank in which serving at time of separation; in item 5b to enter the pay grade for the rank shown in item 5a; and in item 6 to enter the date of rank for the rank shown in item 5a.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his rank and grade shown on his DD Form 214 should be corrected to show SGT/E-5.
2. Despite the fact that the record copy of the applicant's SGT promotion order is an extract and devoid of a promotion authority's signature or authentication, it is presumed to be legitimate. This order coupled with other available evidence confirms the applicant was promoted to the rank and grade of SGT/E-5 effective 15 March 1970, in official orders that were published prior to his 7 June 1970 release from active duty.
3. 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. Therefore, the applicant's DD Form 214 should be corrected at this time by deleting the current entries in items 5a, 5b, and 6; and by adding the entry SGT to item 5a, by adding E-5 to item 5b, and by adding 15 March 1970 to item 6.
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 is 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 6; by adding the entry SGT to item 5a; by adding E-5 to item 5b; by adding 15 March 1970 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) AR20100011932
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100014860
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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