IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110002820 


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 receipt of pay as a sergeant (SGT)/E-5.

2.  The applicant states the following:

   a.  although he was promoted to SGT on 5 November 1970, while serving in Vietnam, he never received pay as an E-5; and

   b.  upon reassignment to Fort Ord, California, he received a letter from the Adjutant General indicating he would be recognized as a SGT; however, the applicant's commanding officer did not recognize him as a SGT which resulted in his inability to receive the equivalent pay.
   
3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued on 10 December 1968 and 26 May 1971.

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 record shows he initially enlisted in the Regular Army on 31 January 1968, in the rank of private (PVT/E-1).  He was promoted to the following ranks on the dates indicated:

* private (PV2/E-2) - 31 May 1968
* private first class (PFC/E-3) - 10 August 1968
* specialist four (SP4/E-4) - 6 December 1968

3.  On 10 December 1968, he was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 issued him at that time shows he completed 10 months and 10 days of active military service.

4.  On 11 December 1968, the applicant reenlisted in the RA, in the rank of specialist four (SP4/E-4).  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 13 April 1970 to 17 March 1971.

5.  On 14 August 1969, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order given by his superior commissioned officer.  His punishment included a reduction to PFC/E-3.

6.  Headquarters, 3rd Armored Division, published Special Orders Number
(SO #) 253 dated 10 September 1969.  It shows the applicant was reduced from SP4 to PFC under the provisions of Article 15 of the UCMJ by reason of misconduct effective 22 August 1969.

7.  On 19 December 1970, Headquarters, 23rd Infantry Division, published 
SO #353.  It announced the applicant's promotion from SP4 to SGT effective 
5 November 1970.  The applicant's record does not contain a promotion order or other evidence showing he was advanced to SP4 after his reduction to PFC.

8.  On 26 May 1971, the applicant was discharged from active duty for the purpose of immediate reenlistment.  Item 5a (Grade, Rate, or Rank) and item 5b (Pay Grade) of his DD Form 214 shows he held the rank of (SGT/E-5).

9.  On 27 May 1971, the applicant reenlisted in the RA in the rank of SGT.
10.  On 19 October 1972, an assistant adjutant general at Fort Ord, United States Army Combat Developments Experimentation Command, California prepared a letter to Commander, 3rd Armored Division, the applicant's former commander while assigned in the RVN.  In it he inquired if SO #253 dated 10 September 1969 were ever amended, rescinded, or revoked.  The response to this inquiry is not included in the applicant's record.

11.  On 22 November 1972, the assistant adjutant general issued correspondence showing:

	a.  the applicant was reduced to PFC on 8 July 1969 [sic] and erroneously promoted to SGT 5 November 1970;

	b.  the applicant was never promoted to SP4 after his reduction; and

	c.  de facto status is approved for the period 5 November 1970 to 22 November 1972.

12.  On 13 February 1973, the assistant adjutant general prepared an inquiry to the Commander, United States Army Enlisted Personnel Support Center, Fort Benjamin Harrison, Indiana, requesting information pertaining to all the applicant's promotions and reductions for the period 22 August 1969 to 27 May 1971.

13.  On 10 May 1973, the Executive Officer, United States Enlisted Records Center, responded indicating the applicant's Official Military Personnel File (OMPF) did not contain any promotion or reduction orders.

14.  The applicant’s record contains Headquarters, United States Army Combat Developments Experimentation Command, Fort Ord California, SO #162, dated 14 August 1973.  It shows the applicant was reduced from PFC to PVT effective on 8 August 1973.

15.  On 24 August 1973, the applicant was discharged from the Army under the provisions of Army Regulation 635-200, chapter 10, after completing a total of 5 years, 5 months, and 13 days of creditable active duty service.  The
DD Form 214 issued at that time shows he held the rank of PVT.


16.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time of the applicant’s discharge contained item-by-item instructions for completing the DD Form 214 in Section II.  These instructions indicated that the active duty grade of rank and pay grade at the time of separation will be entered in Items 5a and 5b on that document.

17.  The legal "Doctrine of Laches" bars a claimant from receiving relief where the claimant's delay in pursuing the claim has operated to the prejudice of the opposing party.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be granted pay for his service on active duty in the rank of SGT/E-5.

2.  The evidence of record shows the applicant was erroneously promoted to SGT on 5 November 1970.  It also shows he was promoted to SP4 on 6 December 1968, the highest rank he attained while serving on active duty and he held this rank until he was reduced to PFC for misconduct on 22 August 1969. Upon determining he was erroneously promoted to SGT, the applicant was returned to the rank of PFC.

3.  The evidence of record also confirms the applicant was granted de facto status during the period he erroneously held the rank of SGT from 5 November 1970 to 22 November 1972.  De facto status means he was not required to reimburse the Army any increase in pay received while he served in the SGT rank.  Accordingly, it appears he received the pay as a SGT.  Based on the applicant's erroneous promotion to SGT and lacking evidence to corroborate the applicant's claim he did not receive pay as an E-5, there is an insufficient evidentiary basis upon which to grant the requested relief.

4.  Further, it has been approximately 38 years since his discharge in 1973.  Available records are inadequate to confirm or deny the applicant's pay during the period in question.  Regrettably, due to the passage of time pertinent information is unavailable or destroyed; therefore, favorable consideration of the applicant's request is barred by the doctrine of laches.

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)                                         AR20110002820





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ABCMR Record of Proceedings (cont)                                         AR20110002820



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