IN THE CASE OF:
BOARD DATE: 31 March 2011
DOCKET NUMBER: AR20100023990
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 as sergeant (SGT)/E-5 instead of specialist five (SP5) and to show award of the Army Commendation Medal.
2. He states the medal was awarded on 19 February 1969 per General Orders Number 28 and he was appointed to the rank of SGT on 25 September 1967 per Unit Orders Number 47.
3. He provides General Orders Number 28, dated 19 February 1969 and Unit Orders Number 47, dated 25 September 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 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 enlisted in the Regular Army on 22 November 1965.
3. His DA Form 20 (Enlisted Qualification Record) shows in:
* Item 33 (Appointments and Reductions) he was promoted to SP5 on 13 June 1967
* Item 41 (Awards and Decorations) doesnt list award of the Army Commendation Medal, but lists the National Defense Service Medal, 1 Year Safe Driver Badge, Army Good Conduct Medal, and Expert Marksmanship Badge with Rifle Bar (M-14)
4. He provided Unit Orders Number 47, dated 25 September 1967, which show he was appointed to the temporary acting grade of SGT/E-5.
5. His service record does not contain orders which show he was laterally appointed to the permanent rank of SGT.
6. He was honorably released from active duty on 7 November 1968.
7. Item 5a (Grade, Rate or Rank) of his DD Form 214 shows he was separated in the rank of SP5.
8. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) on his DD Form 214 shows he was awarded the National Defense Service Medal and the Army Good Conduct Medal.
9. He also provided General Orders Number 28, dated 19 February 1969, which show he was awarded the Army Commendation Medal for meritorious service from 19 September 1966 to 31 October 1968.
10. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. In pertinent part, it directed that the grade in which enlisted personnel were serving at the time of separation would be entered in item 5a.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he was promoted to SGT on 25 September 1967 per Unit Orders Number 47 is acknowledged. However, these orders temporarily appointed him to a position of acting SGT. His service record does not contain orders which show he was laterally promoted to SGT prior to separation.
2. Based on Army Regulation 635-5, the rank in which enlisted personnel served at the time of separation will be shown on the DD Form 214. Therefore, his DD Form 214 properly reflects that he held the rank of SP5 on 7 November 1968, the date he was released from active duty. Therefore, there is no basis for correcting his DD Form 214 to show his rank as SGT.
3. General orders awarded him the Army Commendation Medal. Although the orders were published after he was separated from active duty, he was awarded this award for action during his tenure on active duty. Therefore, his DD Form 214 should be amended to show this award.
4. His DA Form 20 shows he was awarded the 1 Year Safe Driver Badge and the Expert Marksmanship Qualification Badge with Rifle Bar (M-14) while he was on active duty. However, these badges are not listed on his DD Form 214. Therefore, it would be appropriate to amend his DD Form 214 to show these badges.
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 the Army Commendation Medal, 1 Year Safe Driver Badge, and Expert Marksmanship Qualification Badge with Rifle Bar (M-14) to item 24 his DD Form 214.
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 amending his DD Form 214 to show his rank as SGT.
_________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) AR20100023990
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ABCMR Record of Proceedings (cont) AR20100023990
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