BOARD DATE: 23 June 2011
DOCKET NUMBER: AR20100028465
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 that he was separated in the rank/grade of staff sergeant (SSG)/E6.
2. He states that he believes he was paid E5 pay the year he was in Vietnam and should have been paid E6 pay. He adds that he also believes he is entitled to the difference in pay plus interest.
3. He provides the following:
* Congressional correspondence
* Special Orders Number 120, dated 30 April 1969
* Four congratulatory letters
* 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's records show he was inducted into the Army of the United States on 9 July 1968. He was credited with 1 year, 11 months, and 13 days of active duty service of which 11 months and 28 days was listed as Foreign Service. He was honorably released from active duty on 21 June 1970.
3. Item 5a (Grade, Rate or Rank) and item 5b (Pay Grade) of his DD Form 214 show his rank/pay grade as sergeant (SGT)/E5 with a date of rank listed as
20 March 1969.
4. Special Orders Number 120, dated 30 April 1969, show he was promoted to the temporary grade of SSG.
5. The applicant provided four letters from his chain of command congratulating him on his promotion to SSG. The letters stated, in effect, that his advancement to SSG was recognition of his outstanding performance of duty.
6. As a matter of information, during the Vietnam area, Soldiers were often temporarily appointed to a higher grade to fill a particular need or vacancy within a unit. However, when an individual was discharged, they reverted to their permanent grade and that permanent grade was recorded as the grade in which an individual was separated.
7. 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. Paragraph 2-9 instructs the preparer to enter in items 5a/5b the rank/pay grade in which serving at the time of separation.
8. Title 31 U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.
9. The equitable doctrine of laches permits dismissal of a claim when an applicant's unreasonable delay in asserting an error or injustice makes it impossible for the Army to retrieve information necessary to evaluate an applicant's asserted basis for relief.
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows the applicant was temporarily promoted to SSG on 30 April 1969. There is no evidence and he has not provide any to show that he was permanently promoted to SSG and he successfully maintained that rank throughout his service in the military.
2. He states he believes he was not paid as an E6 while in Vietnam and therefore, he is entitled to the difference in pay from E5 to E6 plus interest. As stated in paragraph 8 of this document, the barring statute prohibits the payment of a claim against the Government that was received after 6 years after the accrual date. Nevertheless, there is no evidence and he has not provided any to show that he was not paid as an E6 during the period he was temporarily promoted.
3. In view of the foregoing, there is no basis for granting his 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) AR20100028465
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ABCMR Record of Proceedings (cont) AR20100028465
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