BOARD DATE: 14 December 2010
DOCKET NUMBER: AR20100015642
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 military records to show he was promoted to pay grade E-5.
2. He states the following:
* He was up for promotion to E-5 but was discharged before he received his promotion
* The promotion board minutes and promotion list, dated 4 June 1971, show he was in a promotable status
* He left Vietnam and he was discharged at Fort Lewis, WA on 24 June 1971 before he received his promotion to E-5
* He has always regretted not receiving his promotion to E-5 and he would like it shown on his record that he was promoted
3. He provides the following documents:
* the Minutes of the Promotion Board Meeting, dated 4 June 1971
* a Recommended List for Promotion to Grades E-5 and E-6
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a Letter of Commendation
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 applicants 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 applicants 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
10 September 1969 in pay grade E-1. He completed training and was awarded military occupational specialty (MOS) 11B (light weapons infantryman). He was assigned to Vietnam on 12 June 1970 with Company C, 4th Battalion, 21st Infantry, 11th Infantry Brigade.
3. He was promoted to specialist four (SP4)/E-4 on 14 January 1971.
4. On 4 June 1971, he was recommended for promotion to E-5 by a Promotion Board. The promotion list shows his promotion MOS as 11B4O with 567.8 promotion points. The promotion list memorandum specified that personnel on this list had been recommended by a selection board selected by the Commanding Officer and listed in the order they were to be promoted consistent with MOS position vacancies and quotas received.
5. The applicant departed Vietnam on 24 June 1971 and he was transferred to Fort Lewis, WA, for separation processing.
6. On 24 June 1971, he was honorably released from active duty by reason of overseas returnee. Items 5a (Grade, Rate, Rank) and 5b (Pay Grade) of his DD Form 214 show the entry "SP4" and "E-4," respectively.
7. His service record does not contain any evidence which indicates he was promoted to E-5 or that he ever equaled or exceeded the cut-off score for his MOS before he was released from active duty on 24 June 1971.
8. Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7 (Promotion and Reduction), in effect at the time, governed the promotion of
enlisted Soldiers for grades E-3 through E-9. It stated, in pertinent part, that promotion of enlisted personnel in grades E-3 through E-9 would be announced in routine orders. For promotion to grades E-5 and E-6, orders would be issued for Soldiers who equaled or exceed the DA promotion point cut-off for their MOS. The effective date of promotion is the first calendar day of the month the Soldier is eligible and equals or exceeds the announced DA promotion point cut-off score. It further stated that a precondition service obligation was established as 3 months for promotion to grade E-5. Waivers would not be granted.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention regarding his promotion to E-5 is acknowledged; however, there is insufficient evidence to determine that an error or injustice exists in this case.
2. He has failed to show through the evidence submitted and the evidence of record that he ever equaled or exceeded the promotion cut-off score for his MOS or that he was promoted to the grade of E-5 prior to his release from active duty.
3. He was recommended for promotion on 4 June 1971 while in Vietnam and he was appropriately placed on the promotion list in MOS 11B. He departed Vietnam on 24 June 1971 and he was transferred to Fort Lewis for separation processing. Due to regulatory constraints, it is unlikely that he would have been promoted before he departed Vietnam or while he was at Fort Lewis prior to his separation.
4. Therefore, in the absence of evidence showing he was promoted to E-5, it must be presumed that what the Army did at the time was correct and in accordance with applicable regulations in effect at the time. The burden of proving otherwise rests with the applicant.
5. In view of the foregoing, there is no basis for granting his requested relief.
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) AR20100015642
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ABCMR Record of Proceedings (cont) AR20100015642
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