IN THE CASE OF:
BOARD DATE: 12 April 2011
DOCKET NUMBER: AR20100025023
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, in effect, that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show he was promoted to the pay grade of E-5.
2. The applicant states, in effect, that approximately 2 days before departing Vietnam he appeared before a promotion board in Qui Nhon and he was promoted to the pay grade of E-5 the next day. However, the promotion never appeared on his DD Form 214.
3. The applicant provides no additional documents with his application.
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
14 December 1965. He completed his basic training at Fort Hood, Texas and he was transferred to Fort Gordon, Georgia to undergo advanced individual training (AIT) as a military policeman. He did not complete that training and was transferred to Fort Leonard Wood, Missouri to undergo AIT as an asphalt and concrete equipment operator. He completed that training and remained assigned to Fort Leonard Wood.
3. On 20 August 1966, he was transferred to Vietnam with his unit (44th Engineer Detachment). He was advanced to the pay grade of E-4 on 10 January 1967.
4. On 13 September 1967, he departed Vietnam and was transferred to Fort Lewis, Washington where he was honorably released from active duty (REFRAD) in the pay grade of E-4, on 15 September 1967, as an overseas returnee. He had served 1 year, 9 months, and 2 days of total active service.
5. A review of his official records failed to show any indication the applicant appeared before a promotion selection board or that he had been promoted to the pay grade of E-5 prior to discharge.
6. The applicants records contain a copy of his clearance papers which show that he cleared Vietnam in the pay grade of E-4. Additionally, he underwent a physical and medical separation examination on 15 September 1967 and the applicant indicated that his pay grade was E-4.
7. Army Regulation 600-200, in effect at the time, provided in pertinent part, that promotion to the pay grade of E-5 would be announced in special orders.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he was promoted to the pay grade of E-5 has been noted and appears to lack merit.
2. Promotion to the pay grade of E-5 requires the announcement of the promotion in special orders. However, the applicant has not provided a copy of those orders and his official records contain no evidence of such a promotion.
3. Therefore, in the absence of orders to show he was in fact promoted to the pay grade of E-5 prior to his REFRAD there appears to be no basis to approve his request.
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 the United States during the Vietnam War. The applicant and all Americans should be justifiably proud of his 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) AR20100025023
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ABCMR Record of Proceedings (cont) AR20100025023
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