IN THE CASE OF:
BOARD DATE: 13 March 2012
DOCKET NUMBER: AR20110016960
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, in effect, 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.
2. The applicant states his rank was SP5.
3. The applicant provides his DD Form 214 and a DA Form 2496 (Disposition Form).
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 enlisted in the Regular Army on 13 March 1970 in the rank/grade of private/E-1 and he held military occupational specialty 36H (Test, Measurement, and Diagnostic Equipment Maintenance Support Specialist).
3. He served in Vietnam from 19 March to 6 November 1971 while assigned to the Telephone Operations Company, 160th Signal Group.
4. Headquarters, 160th Signal Group, Unit Orders Number 22, dated 30 April 1971, promoted him to the rank/grade of specialist four (SP4)/E-4 effective 30 April 1971.
5. On 9 October 1971, his immediate commander recommended him for promotion to SP5/E-5.
6. On 4 November 1971, he appeared before an E-5 promotion board and was recommended for promotion to SP5/E-5 by a majority of the board members.
7. On 6 November 1971, he was granted emergency leave to Decatur, AL, due to the serious illness of his father.
8. On 14 December 1971, he was attached to Redstone, Arsenal, AL, pending action on his request for a hardship discharge.
9. Headquarters, U.S. Army Missile Command, Redstone Arsenal, AL, Special Orders Number 23, dated 1 February 1972, discharged him from active duty by reason of hardship effective 3 February 1972. His rank is shown as SP4.
10. On 3 February 1972, he was honorably discharged. Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) of his DD Form 214 show the entries "SP4" and
"E-4" respectively.
11. There are no orders in the applicant's record that show he was promoted to SP5/E-5.
12. Army Regulation 600-200, in effect at the time, stated for enlisted personnel to grades E-3 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders. Field grade commanders in the rank of lieutenant colonel or higher could promote to E-5.
DISCUSSION AND CONCLUSIONS:
The evidence of record shows that at the time the applicant was separated, on 3 February 1972, held the rank of SP4/E-4. Although he may have been recommended for promotion, his record is void of orders promoting him to SP5/E-5. There is no evidence and he has not provided any evidence that shows he was promoted to SP5/E-5 prior to discharge. Therefore, he is not entitled to the 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) AR20110016960
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ABCMR Record of Proceedings (cont) AR20110016960
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