IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110004703 


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/grade as specialist five (SP5)/E-5 instead of specialist four (SP4)/E-4.

2.  The applicant states his rank/grade was actually SP5/E-5.

3.  The applicant provides his 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 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 was inducted into the Army of the United States in the rank/grade of private (PV1)/E-1 on 28 March 1968.  He held military occupational specialty (MOS) 52B (Power Generator Equipment Mechanic).  He was advanced to private (PV2)/E-2 on 27 May 1968.

3.  He served in Vietnam from on or about 19 September 1968 to on or about 29 October 1969.  He was assigned to the 6th Battalion, 29th Artillery,
4th Infantry Division. 

4.  On 3 October 1968, while in Vietnam, Special Orders Number 277, issued by Headquarters, 4th Infantry Division, appointing him to the rank/grade of private first class (PFC)/E-3 (Permanent (P)).

5.  On 30 January 1969, also while in Vietnam, Special Orders Number 30, issued by the same headquarters, appointed him to the rank/grade of SP4/E-4 (Temporary (T)).

6.  He departed Vietnam on 27 October 1969 en route to Fort Lewis, WA for separation processing.  His DA Form 137 (Installation Clearance Record) listed his rank as a "SP4."

7.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he held was SP5/E-5, effective 29 October 1969.  The authority for this promotion is listed as "Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), Separation Program Number 411 (Overseas Returnee)."

8.  His records do not contain official orders promoting him to the rank/grade of SP5/E-5 (T) or (P).

9.  On 29 October 1969, Special Orders Number 302, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, ordered his release from active duty effective 29 October 1969.  The orders listed his rank as a "SP5."

10.  He was honorably released from active duty on 29 October 1969 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.  His DD Form 214 shows in:

* Item 5a and 5b the entry "SP4 (T)" and "E-4," respectively
* Item 6 (Date of Rank) the entry "20 January 1967"
* Item 30 (Remarks) the entry "Item 5a: PFC (P) E-3 Appointed 3 Oct 68"

11.  On 23 July 1970, by letter, the Office of the Adjutant General, U.S. Army Reserve Center, St. Louis, informed the applicant that his records did not contain a copy of his promotion orders to SP5 and, therefore, requested a copy for verification of is claim and correction of his record accordingly.  There is no evidence the applicant responded to the letter.

12.  On 14 March 1973, the Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO, published official orders honorably discharging him from the USAR.  The orders listed his rank as a "SP5."

13.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the
DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  It stated for:

	a.  Items 5a and 5b, enter the rank/grade in which a member was serving at the time of separation with an indication if permanent or temporary; for example "MSG (T) (Master Sergeant, Temporary), SP4 (P)."

	b.  Item 6, enter the date of rank for the grade shown in item 5a. 

		(1)  If the date of rank is different from the date of appointment, enter the date of appointment in item 30 (Remarks).

		(2)  If the grade at the time of separation is not permanent, the permanent grade, date of appointment, and date of rank, if different from date of appointment will be entered in item 30.

	c.  Item 30, used this section to complete entries too long for their respective blocks and/or as a cross-reference.  An entry is made in item 30 with respect to the grade as follows: 

		(1)  If the date of appointment is different from the date shown in item 6, enter date of appointment as follows:  Item 6 - Date of Appointment 15 August 1955.

		(2)  If the grade shown in item 5 is not permanent, enter the permanent grade, date of appointment, and date of rank if different from date of appointment, as follows, "Item 5 - MSG (P) (E-8), Appointed 1 August 1988" or Item 5 - SP5 (T), Appointed 13 September 1958, date of rank 1 August 1958."

14.  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.  Promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders.  Unit orders were issued for promotions to grade
E-3 and E-4.

15.  Army Regulation 600-200 also states the temporary appointment of Regular Army enlisted personnel in grade in which computed from the temporary date of rank on or before 31 July 1968 will automatically become permanent on the date of completion of time in grade as follows:  For appointment to E-5, 12-months time in grade and 4-years time in service.  Temporary appointment or promotion to a specialist grade will vacate any permanent appointment in a noncommissioned officer grade.  The individual will become automatically a permanent specialist in the same pay grade as the vacated permanent noncommissioned officer grade.  Similarly, appointment and promotion of a specialist to a temporary noncommissioned officer grade will have no effect on any permanent specialist grade held by the individual.

DISCUSSION AND CONCLUSIONS:

His service record is void of the promotion instrument (official orders) that promoted him to SP5/E-5.  Although his DA Form 20 contains an entry that indicates he was appointed or promoted to SP5/E-5 on 29 October 1969, the cited authority (Army Regulation 635-200, SPN 411) is not a valid promotion authority.  Army Regulation 635-200, SPN 411 related to his discharge by reason of early separation of overseas returnee.  Therefore, in the absence of valid orders confirming his promotion to SP5/E-5, there is an insufficient evidentiary 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)                                         AR20110004703



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ABCMR Record of Proceedings (cont)                                         AR20110004703



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