BOARD DATE: 28 June 2011
DOCKET NUMBER: AR20100030204
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 military service records to his rank and pay grade as sergeant (SGT)/E-5 instead of private first class (PFC)/E-3. In addition, he further requests retroactive pay from the correction to his pay grade.
2. He states, that his reduction in rank during his tour in the Republic of Vietnam (RVN) was unjust. He states that he has documentation to prove that he was sick and physically unable to perform guard duty the night in question.
3. He provides no additional documentation in support of this case.
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 23 September 1966. He successfully completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light weapons Infantryman).
3. He arrived in the RVN and was assigned to B Company, 1st Battalion, 16th Infantry, Ist Infantry Division on 5 March 1967. He was promoted to Specialist Four (SP4)/E-4 on 20 September 1967.
4. He departed the RVN on 4 March 1968 and was assigned to A Company, 5th Battalion, 1st Infantry, Combat Arms Group, Fort Campbell, KY.
5. On 10 September 1968, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to be at his appointed place of duty. His punishment consisted of reduction to the pay grade of private first class (PFC)/E-3 and 30 days confinement (15 days of the 30 days confinement suspended).
6. Unit Orders Number 52, dated 11 September 1968 issued by the 5th Battalion, 1st Infantry shows that he was reduced to the rank and pay grade PFC on 10 September 1968.
7. On 31 October 1968, he was honorably released from active duty by reason of completion of expiration of term of service (ETS). The DD Form 214 he was issued shows in:
* item 5a (Grade, Rate, or Rank) the entry "PFC"
* item 5b (Pay Grade) the entry "E-3"
* item 6 (Effective Date of Pay Grade) the entry "10" Day, Sep Month, and 68 Year
8. There are no special orders in his service personnel records promoting him to SGT/E-5 while he was on active duty.
9. Army Regulation 600-200, chapter, in effect at the time, prescribed the promotion policy to pay grades E-4 through E-9 and the selection board process. It stated that a waiver of the requirement to appear before a selection board
would not be granted. The board would consist of both officers and enlisted appointed by the appropriate promotion authority to select individuals for promotion to pay grades E-5 through E-9. A list of the individuals recommended by the board and selected by the promotion authority, in the order they were to be promoted, would be published.
10. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It
established standardized preparation of the DD Form 214. It states, that item
5a (Grade, Rate or Rank) and 5b (Pay Grade) will be completed to show the active duty grade or rank and pay grade at the time of separation.
DISCUSSION AND CONCLUSIONS:
The applicant contends that his rank on his DD Form 214 should be corrected to show the rank of SGT. However, evidence of record shows the highest grade he held on active duty was SP4. He was reduced in rank to PFC on 10 September
1967. In addition, there is no evidence i.e. (promotion orders, earning statement, approved recommended for promotion etc.) Therefore, his DD Form 214 with the ending period 31 October 1968, which shows his rank as 10 September 1967 to be PFC, appears to be correct. Additionally, there is no indication that the article 15 was in error or unjust.
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) AR20100030204
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ABCMR Record of Proceedings (cont) AR20100030204
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