IN THE CASE OF:	  

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110013031 


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) by amending the following items to show:

* Item 5a (Grade, Rate or Rank) - “specialist six (SP6)”
* Item 5b (Pay Grade) - “E-6”
* Item 6 (Date of Rank (DOR)) - “30 April 1969”
* Item 25 (Education and Training Completed) - “Military Occupational Specialty (MOS) 94B (Cook), 8 Weeks, 1967"

2.  He also requests all due back pay as a result of his promotion to SP6/E-6. 

3.  He states, in effect, he completed training for food service management and meat cutting with the U.S. Army Quartermaster School (USAQMS); however, this information was never entered on his DD Form 214.  He was also promoted to the grade of SP6/E-6 one day prior to his discharge.  As a result, this information was not entered on his DD Form 214 and he did not receive the pay he was due. 

4.  He provides:

* A certificate of training
* His DD Form 214
* Various orders
* A DA Form 20 (Enlisted Qualification Record)

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.  His records show he enlisted in the Regular Army on 2 May 1966 for a period of 3 years.  After the completion of basic combat training, he attended 21 weeks of advanced individual training (AIT) for MOS 31E (Field Radio Repairer); however, this entry is lined-through in item 27 (Military Education) of his DA Form 20.

3.  Item 25 of his DA Form 20 also shows he completed 8 weeks of AIT at the USAQMS for MOS 94B in 1967.

4.  Item 33 (Appointments and Reductions) of his DA Form 20 does not show his promotion to SP6/E-6.

5.  On 30 April 1969, Headquarters, U.S. Army Training Center Armor (2018), Fort Knox, KY, published Special Orders Number 120 promoting the applicant to the Temporary (T) grade of SP6/E-6 on the same date. 

6.  He was honorably released from active duty (REFRAD) on 1 May 1969 and transferred to the U.S. Army Reserve Control Group (Reinforcement) for completion of his Reserve service obligation.  His DD Form 214 for this period shows the following entries:

* Item 5a – “specialist five (SP5) (T)”
* Item 5b – “E-5”
* Item 6 – “29 November 1967”
* Item 25 – “None”
* Item 26b (Days Accrued Leave Paid) – “23”
* Item 30 (Remarks) – “Item 5a: specialist four (SP4) (P) Appointed (APTD) 23 May 1967”


7.  He provided a letter of congratulations from his chain of command, dated     12 May 1969.  This letter stated that the applicant should be advised that because he was promoted to SP6 one day prior to discharge, he may be entitled to one month’s pay as an E-6 plus the difference in pay for each day of leave he was paid for upon his discharge.  He was instructed to go to the nearest Veterans Administration (VA) or U.S. Army office to process his claim.

8.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7 (Promotion and Reduction), in effect at the time, prescribed the policies and procedures governing promotion, reduction, and lateral appointment of all enlisted personnel on active duty, other than active duty for training.  It also provided for the temporary promotion of enlisted personnel of the Active Army to pay grades E-4 through E-6.  The temporary appointment of a Regular Army enlisted Soldier automatically becomes permanent on the date of completion of specific time in grade and time service requirements.  Permanent promotion to pay grade E-5, during the period in question, required 1 year time in grade and 
6 years time in service.

9.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.  It stated that items 5a and 5b would reflect the individual’s grade at time of separation and item 6 would reflect the respective DOR.  If the grade at time of separation was not the permanent grade, the permanent grade, date of appointment, and date of rank, if different from date of appointment, would be entered in item 30 of the DD Form 214. 

10.  The same regulation, then in effect, stated that Item 25 would show major courses that were successfully completed, and military sponsored courses completed in civilian schools and colleges during period covered by the DD Form 214 being prepared.  

11.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to the grade of SP6/E-6 (T) on 30 April 1969.  Therefore he is entitled to have items 5a, 5b, and 6 reflect this information on his DD Form 214. 

2.  He successfully completed 8 weeks of training in 1967 and was awarded MOS 94B.  As such, he is entitled to have this information entered in item 25 on his DD Form 214. 

3.  His DD Form 214 shows he was paid for 23 days of accrued leave at the time of his REFRAD.  On 12 May 1969, his chain of command noted in its congratulatory letter that he should have contacted the nearest VA or U.S. Army office to process his claim for entitlement to pay at the SP6/E-6 level.  There is no way for this Board to prove or disprove his entitlement to one month’s pay in the higher grade nearly 40 years later or if in fact, he did process his claim as instructed by his chain of command.  

4.  An arbitrary ruling in his favor, without knowing what his records would have shown, would cause prejudice to the Government.  Had he applied to the Board in 1970 (or even brought it to the Army’s attention at the time that he had been promoted to SP6 in April 1969), an equitable decision could possibly have been made in his case.  However, since it is now 40 years after his promotion to SP6/E-6, the doctrine of laches is invoked in his case regarding this issue.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X__ _  ___X_ __  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 1 May 1969 by:

   a.  deleting from item 5a the entry “SP5 (T)” and replacing it with “SP6 (T)”;
   
   b.  deleting from item 5b the entry “E-5” and replacing it with “E-6”;
   
   c.  deleting the date “29 November 1967” from item 6 and replacing it with 
“30 April 1969”; and 
   d.  deleting the entry ”None” in item 25 and replacing it with “MOS 94B, Cook, 8 Weeks, USAQMS, 1967.”  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to back pay for promotion to SP6/E-6.




      _______ _  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)                                         AR20110013031





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013031



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1