IN THE CASE OF:
BOARD DATE: 23 August 2011
DOCKET NUMBER: AR20110001077
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 specialist five (SP5)/E5.
2. He states he took the SP5 test in Vietnam on 2 November 1971 and was informed that he passed the test. He states that his camp was deactivated on or about 2 January 1972 and Soldiers with 180 days or less service remaining obligation were sent home. He adds that he was given a 123-day drop and was discharged without being promoted.
3. He provides extracts from two self-authored letters to family members.
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 28 April 1970. He served in Vietnam from 30 July 1971 to 4 January 1972. He was honorably released from active duty on 5 January 1972 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), early separation of overseas returnees. He was credited with 1 year, 8 months, and 8 days of active duty service.
3. His DD Form 214 shows his rank/pay grade as specialist four (SP4)/E4 with his date of rank listed as 4 March 1971.
4. General Orders Number 271, dated 16 February 1972, show he was awarded the Army Commendation Medal. This order shows his rank as SP4.
5. There are no documents in the available records that show he was promoted to the rank of SP5/E-5.
6. He provided copies of letters he wrote to family members while assigned in Vietnam. In these letters, he comments on passing the SP5 promotion board and his expectations of receiving promotion orders.
7. Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214. This 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. Section II requires the preparer to enter the active duty grade or rank and pay grade at the time of separation in item 5a and 5b and date of rank in item 6.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was promoted to SP4/E4 on
4 March 1971. There is no evidence, and he has not provided any to show that he was subsequently promoted to SP5 prior to his early release from active duty. Therefore, in the absence of a formal document or pay records showing approval authority for promotion/advancement to SP5/E-5 with an effective date of rank, there is no basis to approve his request.
2. 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) AR20110001077
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ABCMR Record of Proceedings (cont) AR20110001077
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