BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100021185 


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 to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his rank as specialist (SPC)/E-4.

2.  The applicant states, in effect, he has some military papers that show his rank as a SPC and some that show his rank as a private first class (PFC)/E-3.  He would like his records reviewed and a determination made as to his correct rank at the time of separation. 

3.  The applicant provides the following documents in support of his request:

* DD Form 214 with a separation date of 29 June 1970
* DA Form 3078 (Personal Clothing Request), dated 29 June 1970
* DA Form 137 (Installation Clearance Record), dated 26 June 1970
* Annex U to LO 5-55 Headquarters, 3rd Brigade, 9th Infantry Division

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 27 November 1968.  He completed the training requirements and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He received two Bronze Star Medals with "V" Device for his personal heroism while serving in the Republic of Vietnam in 1969.

3.  The applicant was promoted to the rank of PFC/E-3 on 16 May 1969 by Unit Orders Number 125 issued by Reliable Academy, 9th Infantry Division.  There are no official orders available showing he was promoted to SPC/E-4.

4.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the following grade sequence:

			Grade				Date of Rank				Authority
Private/E-1
27 November 1968
Army Regulation (AR) 601-270
Private/E-2
27 March 1969
AR 600-200 paragraph 7-19a
PFC/E-3
16 May 1969
Unit Order Number 125, dated 16 May 1969
5.  On 29 June 1970, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) by Special Orders Number 180 issued by Headquarters, U.S. Army Personnel Center, Oakland, CA.  This order shows his Reserve grade was PFC/E-3.

6.  He was issued a DD Form 214 that shows he completed 1 year, 7 months and 3 days of active federal service.  Item 4a (Grade, Rate, or Rank) shows his rank as PFC and item 4b (Pay Grade) shows his pay grade as E-3.  

7.  He provided a DA Form 3078, dated 29 June 1970, that shows the insignia issued to him on his clothing record was "SP4/E-4."  He also provided a DA Form 137, dated 26 June 1970, that shows his grade as "SP4."  The third document he submitted is Annex U to LO 5-55 Headquarters, 3rd Brigade, 9th Infantry Division that also shows his rank as a "SP4."

8.  Army Regulation 600-200 (Enlisted Personnel Management System) provides for the temporary promotion of enlisted personnel of the Active Army to pay grades E-4 through E-6.  Temporary promotions to these grades are made against periodic temporary promotion quota allocations.  Control was exercised by all commands to ensure that temporary promotions did not exceed command pay grade vacancies, personnel ceilings, or allotted quotas.  For consideration to the temporary grade of E-4 with a waiver, a Soldier must have served 6 months time in grade as a PFC with 1-year time in service.  A Soldier's unit commander must have recommended him for promotion with a minimum promotion qualification score of 110 without a waiver consideration.  Soldiers may be recommended for promotion by their unit commander only against an authorized position vacancy within their unit that currently exists or is projected to exists for a 2 month period as announced by the promoting authority.  

9.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  The regulation states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  It requires the preparer to enter from the DA Form 20 the Soldier's active duty grade or rank and pay grade at time of separation.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant provided three documents from his personal service record that shows his rank as "SP4/E-4" there are no promotion orders filed within his available service record to support his contention that he was promoted to "SP4/E-4" or pay records showing he was paid as a "SP4/E4" at the time he separated.  Nor did the applicant provide a copy of a unit promotion order promoting him to "SP4/E-4" or pay records showing he was paid as a "SP4/E-4" at the time he separated.  

2.  Based on regulatory guidance in effect at the time, the applicant with the appropriate commander recommendation and waiver could have been considered for promotion to grade E-4 on or about 26 November 1969.  On this date, he had a minimum of 6 months time in grade as a PFC/E-3 and 1 year time in service.  What is unknown is the command's available vacancies and projected vacancies to support a recommendation for promotion. 

3.  Based on the available evidence of record, the applicant was properly released from active duty on 29 June 1970 in the rank and grade of PFC/E-3.  

4.  In view of the foregoing, there is insufficient basis to grant the applicant's request to change his DD Form 214 with a separation date of 29 June 1970 to show his rank as SPC/E-4.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x___  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his heroic and valorous service in arms.  




      _______ _ 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)                                         AR20100021185



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021185



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1