IN THE CASE OF:	

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100029103 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was promoted to the rank/grade of sergeant (SGT)/E-5. 

2.  The applicant states he has documentation, dated 11 June 1971, that shows he was recommended for promotion to SGT/E-5.  Shortly after this letter was submitted, he appeared before a review board and he was told his promotion was approved.  He never received that pay grade.  

3.  The applicant provides his DD Form 214, DD Form 215 (Correction to 
DD Form 214), and a Promotion Recommendation.

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's records show he was inducted into the Army of the United States in pay grade E-1 on 14 August 1970.  He completed the training requirements and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was advanced to E-2 on 14 December 1970.

3.  He served in Vietnam from 14 February 1971 to 19 March 1972.  He was assigned to the 5th Battalion, 46th Infantry, 196th Light Infantry Brigade, 23rd Infantry Division (Americal).

4.  On 3 March 1971, shortly after his arrival in Vietnam, Headquarters, 23rd Infantry Division (Americal) published Special Orders Number 62 appointing him to private first class (PFC)/E-3 effective 16 February 1971.

5.  On 9 April 1971, Headquarters, 23rd Infantry Division, published General Orders Number 4100 awarding him the Purple Heart.  His rank is listed as a "PFC" on these orders. 

6.  On 7 May 1971, he was issued a certificate of appreciation in recognition of outstanding service during combat operations in Vietnam from 10 March to 
7 May 1971.  The certificate listed his rank as a "PFC."  

7.  On 23 January 1972, Headquarters, 196th Infantry Brigade, published Special Orders Number 23 assigning him to the U.S. Army Transition Station, Fort Lewis, WA for the purpose of separation processing, effective 18 March 1972.  These orders listed his rank as a "PFC." 

8.  His DA Form 137 (Installation Clearance Record), which was initiated upon his departure from Vietnam on or about 17 March 1972, also listed his rank as a "PFC." 

9.  On 19 March 1972, Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, published Special Orders Number 79 showing he was separated in the rank of specialist four/SP4.

10.  On 20 March 1972, he underwent a separation physical at Fort Lewis, WA.  His Standard Form 88 (Report of Medical Examination) listed his rank as a "SP4." 

11.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the entry PFC/E-3 as the highest rank/grade he held. 

12.  His service records do not contain official orders promoting him to SP4/E-4 or SGT/E-5. 

13.  On 20 March 1972, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group to complete his remaining obligation.  He completed 1 year, 7 months, and 7 days of creditable active service.  His DD Form 214 shows in:

* Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) the entries "SP4" and "E-4" respectively
* Item 6 (Date of Rank) shows the entry "10 May 1971"

14.  He submitted a Promotion Recommendation, dated 11 June 19xx, from sergeant first class (SFC) LEF, Custodian, to the company commander through the Assistant Chief of Staff (ACofS), G-1.  

	a.  The Promotion Recommendation appears to recommend that the applicant be promoted from pay grade E-4 to pay grade E-5.  The recommendation also stated that the applicant demonstrated a high degree of skill and knowledge in the operation of an Open Mess warehouse.  He was filling the pay grade or slot of an E-7.  Through his diligent efforts, he had increased ……in the warehouse and the individual clubs.  The quality of his work was of the highest standards.  The SFC highly recommended him for promotion. 

	b.  The memorandum had a pre-prepared undated endorsement with the signature block of lieutenant colonel WTR, the ACofS and the entry "recommend approval."

15.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.  

16.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that items 5a and 5b will show the 
active duty rank and pay grade at time of the Soldier's separation; the rank is taken from the Soldier’s promotion/reduction orders; and item 6 shows the date of rank.

DISCUSSION AND CONCLUSIONS:

1.  With respect to his SP4/E-4 rank/grade, his reassignments orders from Vietnam and clearance papers show he departed Vietnam in the rank of PFC.  His certificate of appreciation dated 7 May 1971 also showed his rank as that of a PFC.  However, his separation orders listed his rank as a SP4 and his DD Form 214 also listed his rank and grade as a SP4/E-4, effective 10 May 1971.  Although his record is void of any orders promoting him to SP4, the entry regarding his rank/grade on his DD Form 214 is presumed to be correct. 

2.  The available evidence is insufficient to correct the applicant's DD Form 214 to show he was promoted to or released from active duty in the rank of SGT/E-5. The recommendation that the applicant provided for promotion to SGT/E-5 is just that, a recommendation.  His service records do not contain official orders promoting him to SGT/E-5, his DA Form 20 shows the highest rank/grade he attained was PFC/E-3, and his separation orders listed his rank as a SP4.  In the absence of documentary evidence confirming he was promoted/appointed to SGT/E-5 the evidence is insufficient to correct his DD Form 214. 

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)                                         AR20100029103



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ABCMR Record of Proceedings (cont)                                         AR20100029103



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