IN THE CASE OF:	  

		BOARD DATE:	  24 March 2011

		DOCKET NUMBER:  AR20100021614 


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 sergeant (SGT)/E-5 instead of specialist four (SP4)/E-4.

2.  The applicant states he was promoted to SGT/E-5 in 1966 or 1967.  He further states his military pay records will show he received E-5 pay in 1967 prior to his discharge.  He adds that although he does not have a copy of his promotion orders he has an original DD Form 345 (Armed Forces Liberty Pass) showing his rank/grade as SGT/E-5. 

3.  The applicant provides a copy of his DD Form 214 and DD Form 345.

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 6 July 1964.  He completed initial entry training and he was awarded military occupational specialty 11C (heavy weapons infantryman).  

3.  Special Orders Number 287, issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, dated 20 November 1965, advanced him to
SP4/E-4.

4.  Unit Orders Number 24, issued by Company C, 2nd Battalion (Airborne),
503d Infantry, dated 1 June 1966, appointed him to acting sergeant.

5.  On 5 July 1967, he was honorably released from active duty at the expiration of his term of service.  He had completed 3 years of total active service.  Item 5a (Grade, Rate, or Rank) shows his rank as SP4.  Item 5b (Pay Grade) shows his pay grade as E-4.  Item 6 (Date of Rank) shows his date of rank as 20 November 1965.

6.  The applicant's release from active duty orders and other discharge-related documents contained in his record shows his rank/grade as SP4/E-4.

7.  His DA Form 20 (Enlisted Qualification Record) shows no rank/grade higher than SP4/E-4.

8.  There are no orders in the applicant's military personnel records jacket promoting him to either temporary or permanent sergeant.

9.  He provides a DD Form 345, dated 2 November 1966, which shows his rank/grade as SGT/E-5.  

10.  Army Regulation 600-200 (Enlisted Personnel Management System), then in effect, 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.

11.  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

12.  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 20 November 1965.

2.  While assigned to Company C, 2nd Battalion (Airborne), 503d Infantry 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.

4.  Although he provided a DD Form 345, dated 2 November 1966, which shows his rank/grade as SGT/E-5, since he was appointed as an acting sergeant on
1 June 1966 it appears his DD Form 345 was issued to reflect his acting rank/grade.

5.  While he states his military pay records would show he received E-5 pay prior to his discharge, there are no available pay records to support his contention.  Even if there were pay records showing he received E-5 pay those records could have been in error.  As such, without orders promoting him to SGT/E-5 as opposed to appointment to acting sergeant there is no basis for changing his rank/grade to SGT/E-5 on his DD Form 214.

5.  In view of the above, the information currently entered in items 5a, 5b, and 6 of his DD Form 214 is correct.

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)                                         AR20100021614



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ABCMR Record of Proceedings (cont)                                         AR20100021614



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