IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100019085 


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) to show he was released from active duty (REFRAD) in the rank/grade of sergeant (SGT)/E-5 and that he was awarded the Marksman Marksmanship Qualification Badge with Pistol Bar. 

2.  The applicant states, in effect, that he would like to have his records corrected to show a rank of SGT for the purpose of an entry on his headstone and to ensure completeness of his service records.

3.  The applicant provided:

* his DD Form 214
* Unit Orders Number 50, dated 8 April 1968
* Special Orders Number 11, dated 25 January 1967

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 26 July 1966.  He completed training and he was awarded military occupational specialty 95B (Military Police).

3.  Special Orders Number 11, issued by Headquarters, U.S. Army Garrison and Logistical Support Operating Element, Camp Roberts, CA, dated 25 January 1967, awarded the applicant the Marksman Marksmanship Qualification Badge with Pistol Bar (.45 caliber).

4.  Unit Orders Number 30, issued by the 54th Military Police Company, Fort Ord, CA, dated 8 April 1968, appointed the applicant as an acting sergeant (E-5).

5.  The applicant was honorably REFRAD) on 25 July 1968.  His DD Form 214 shows in:

* item 5a (Grade, Rate, or Rank) the entry specialist four (T [for temporary])
* item 5b (Pay Grade) the entry E-4
* item 5c (Date of Rank) the entry 30 April 1967
* item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the:

* National Defense Service Medal
* Army Good Conduct Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar

6.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

* item 29 (Qualification in Arms) he qualified as a marksman with the M-14 rifle on 6 September 1966 and with the .45 caliber pistol on 25 January 1967
* item 33 (Appointment and Reductions) he was appointed to private first class (PFC)/E-3 (permanent) on 30 April 1967 and to SP4/E-4 (temporary) on 30 April 1967

7.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated that company, troop, battery, and separate detachment commanders may appoint a qualified individual as acting corporal (CPL)/E-4 or acting SGT/E-5 to serve in position vacancies existing in their units, including those resulting from the temporary absence of an assigned noncommissioned officer (NCO).  Acting NCO's were not entitled to pay and allowances of such  
higher grades and service as an acting NCO was not to be credited as time in a higher grade for promotion or date of rank purposes.

8.  Appointment of acting NCO's and termination of such status will be announced in orders issued by the appointing authority.  Acting NCO status will be terminated:

* at the discretion of the unit commander who made the appointment
* upon reassignment to another unit
* upon assignment of a regularly-promoted NCO to the position
* when casual groups reach their destination

9.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  This regulation stated that the active duty grade or rank and pay grade at the time of separation was entered in item 5a and item 5b of the DD Form 214.  The date of rank for the grade shown in item 5a was entered in item 6.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was advanced to SP4/E-4, effective 30 April 1967.

2.  While assigned to the 54th Military Police Company he was appointed to acting sergeant.  Time served in an acting appointment is not credited as time in a higher pay grade.

3.  There are no orders in his military personnel records jacket promoting him to either the temporary or permanent rank/grade of SGT/E-5.  While the applicant served as a temporary acting sergeant (E-5) this was not an official promotion but rather a temporary appointment.  As it was not an approved official promotion, the DD Form 214 properly shows his rank/grade at the time of his separation as SP4/E-4.

4.  The applicant's award of the Marksman Marksmanship Qualification Badge with Pistol Bar (.45 caliber) was omitted from his DD Form 214.  Therefore, it would be appropriate to correct DD Form 214 to add this weapons qualification.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X____  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 24 of his DD Form 214 the Marksman Marksmanship Qualification Badge with Pistol Bar (.45 caliber).

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing his rank/grade of his DD Form 214 as SGT/E-5.



      _________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)                                         AR20100019085



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ABCMR Record of Proceedings (cont)                                         AR20100019085



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