IN THE CASE OF:
BOARD DATE: 8 March 2011
DOCKET NUMBER: AR20100020523
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 his rank/grade as specialist five (SP5)/E-5 instead of specialist four (SP4)/E-4.
2. The applicant states he departed Vietnam before his promotion could catch up to him.
3. The applicant provides:
* Letter Orders Number D7-325, issued by The Adjutant General, Washington, DC, dated 11 July 1972
* a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated
29 June 1972
* his DD Form 214
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 25 May 1965. He completed training and he was awarded military occupational specialty (MOS) 71B (Clerk Typist).
3. His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 11 May 1966 to 8 May 1967.
4. On 10 May 1967, the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5, as an overseas returnee. He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation. The DD Form 214 he was issued at the time shows he completed 1 year, 11 months, and 16 days of total active service. It also shows in item 5 his rank/grade as SP4/E-4.
5. On 1 May 1970, the applicant applied to the ABCMR, contending that he should have been retired by reason of physical disability rather than being REFRAD and transferred to the USAR.
6. On 13 October 1971, the applicant appeared before an ABCMR panel with counsel. The ABCMR concluded that he was physically unfit for duty on the effective date of his REFRAD. As a result, the ABCMR corrected his records to show he was retired on 10 May 1967 by reason of temporary physical disability and he was placed on the Temporary Disability Retired List (TDRL) in the rank/grade of SP4/E-4.
7. On 27 March 1972, a DD Form 215 (Correction to DD Form 214) was issued correcting his DD Form 214 to show he was retired by reason of temporary disability and he was transferred to the USAR Control Group (Retired). At this time his retirement grade [SP4] was not in question.
8. Letter Orders Number D7-325, dated 11 July 1972, were published showing the applicant was determined to be permanently unfit for duty by reason of physical disability. Therefore, he was removed from the TDRL and permanently retired in current grade. These orders addressed the applicant as "SP5."
9. His available record contains a Finance Center, U.S. Army (FCUSA) Form
20-74 (Request for Information and/or Reply to Correspondence) initiated by the Chief, Retired Pay Division, Indianapolis, IN, to The Adjutant General, Washington, DC, dated 31 August 1972, requesting verification of the applicant's retirement grade.
10. On 20 July 1973, the U.S. Army Military Personnel Center, Alexandria, VA, published Letter Orders Number D7-812. These orders amended Letter Orders Number D7-325 that directed the applicant's removal from the TDRL and permanent retirement to read "SP4" instead of "SP5."
11. There is no evidence of record and the applicant did not provide any evidence to show he was ever promoted to SP5 during his active duty service.
DISCUSSION AND CONCLUSIONS:
1. The orders announcing his removal from the TDRL were addressed to him as SP5. That was apparently an administrative error, and the order was amended to correct his rank to SP4.
2. There is no available evidence to show the applicant ever attained the rank of SP5.
3. In view of the foregoing, there is no basis for granting the applicant's 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) AR20100020523
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ABCMR Record of Proceedings (cont) AR20100020523
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