IN THE CASE OF:
BOARD DATE: 3 April 2012
DOCKET NUMBER: AR20110017819
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) with an effective date of 22 November 1971 to show he was released from active duty as a sergeant/pay grade E-5.
2. The applicant states there was an administrative mistake when his DD Form 214 was completed. Orders verify he was selected for promotion to sergeant.
3. The applicant provides a memorandum from Headquarters, 4th Battalion, 31st Infantry, 196th Infantry Brigade, 23rd Infantry Division, dated 18 September 1971, subject: Recommended List for Promotion to Pay Grade E-6 and E-5.
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. He was inducted into the Army of the United States on 19 May 1970. He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).
3. On 14 November 1970, he was assigned to Company D, 4th Battalion, 31st Infantry, 196th Infantry Brigade, in the Republic of Vietnam. He was promoted to specialist four/pay grade E-4 on 9 April 1971.
4. On 8 September 1971, he was reassigned to the 501st Adjutant General Administrative Company, Replacement Detachment, Fort Carson, CO, with a reporting date of 16 November 1971.
5. The memorandum he provides, dated 18 September 1971, stated personnel from the attached promotion list would be promoted based upon the promotion cut-off score announced monthly by the Department of the Army. The promotion list showed him with:
* Points 592.3
* Date Selected 18 September 1971
* DEROS (date eligible for return from overseas) 14 October 1971
6. On 17 November 1971, he was reassigned to the U.S. Army Transfer Point, Fort Carson, CO, for expiration of term of service.
7. On 22 November 1971, he was released from active duty by reason of being an overseas returnee. He completed 1 year, 6 months, and 4 days of active service that was characterized as honorable. His DD Form 214 shows his rank as specialist four/pay grade E-4 on the date of his separation.
8. There are no orders in his Military Personnel Records Jacket (MPRJ) promoting him to sergeant/pay grade E-5.
9. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, governed the promotion of enlisted personnel.
a. Chapter 7 stated the precondition service obligation for promotion to pay grade E-5 was 3 months and waivers would not be granted.
b. The promotion authority was to remove the name of any individual from the local recommended list who was not qualified or who failed to qualify for reenlistment or extension of current enlistment to meet the remaining obligated active service requirement by the last day of the month established for promotion. Removal under this provision was mandatory.
c. Upon arrival of a Soldier whose records evidence local recommended list status for promotion to grades E-5 or E-6, the gaining commander will ascertain whether the individual met the required remaining obligated service for promotion.
DISCUSSION AND CONCLUSIONS:
1. The memorandum he provided shows he was placed on the promotion list on 18 September 1971.
2. There are no orders in his MPRJ showing he was promoted to E-5 prior to his departure from the Republic of Vietnam.
3. Upon his arrival at the 501st Adjutant General Administrative Company, the commander would have determined whether he met the required remaining obligated service requirement for promotion. Based on his further transfer to the transfer point for release from active duty on 22 November 1971, he would not have served the required 3 months for promotion to E-5. Therefore, it appears he was not promoted to E-5 due to his failure to meet the 3-month service requirement for promotion.
4. In view of the foregoing, there is no basis for granting the relief he requests.
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 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) AR20110017819
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ABCMR Record of Proceedings (cont) AR20110017819
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