BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110020177 


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 records to show he was never in an absent without leave (AWOL) status.  He also requests to be advanced to the grade of sergeant (SGT)/E-5, effective prior to his release from active duty (REFRAD). 

2.  He states he was not allowed advancement in pay grade for a year and a half due to a mistake with the paperwork provided by the military, as explained to him by his superiors.  After serving a year in Vietnam, he was sent home with malaria and spent over a month in the hospital.  

3.  He contends his family and medical personnel sent notification to the military pertaining to his hospitalization, but the information was never entered in his records.  He returned to Vietnam for 6 months and was recommended for advancement twice.  However, when he returned to Fort Carson, CO he was still listed as being AWOL.  

4.  He provides:

* two Certificates of Appreciation
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* discharge orders
* an honorable discharge certificate


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 record shows he enlisted in the Regular Army on 8 January 1968 for a period of 3 years.  After completion of training, he served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served a total of 18 months in Vietnam, beginning on 3 September 1968.  Item 33 (Appointments and Reductions) shows Specialist Four (SP4)/E-4 as the highest advancement he received while serving on active duty.

4.  Special Orders Number 67, issued by Headquarters, 4th Infantry Division on  8 March 1969, show the applicant was promoted to the grade of SP4/E-4 effective 23 February 1969. 

5.  The applicant's record contains a DD Form 1351-2 (Travel Voucher or Sub -voucher) which shows he departed Vietnam on 29 August 1969 and arrived in Fort Lewis, WA on the same day.  He departed on leave to Ladysmith, WI on 
29 August 1969.  

6.  His record contains an official message from Headquarters, Department of the Army (HQDA), The Adjutant General (TAG) addressed to the Commander, Company C, 1st Battalion, 22nd Infantry, Pleiku, Republic of Vietnam.  This document shows the applicant became ill with malaria and was admitted to St. Mary's Hospital, Ladysmith, WI on 16 September 1969.  It further shows coordination was made to transfer him to a military hospital.  

7.  The same DD Form 1351-2 also shows the applicant departed Fort Lewis, WA on 10 October 1969, and returned to Vietnam on 12 October 1969 for completion of his tour.  
8.  His record contains a DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice).  This form shows that while serving in Vietnam, he received nonjudicial (NJP) on 19 January 1970 for being absent from his place of duty from 0800 hours (8:00 AM) to 1200 hours (12:00 PM) on 18 January 1970.  

9.  The applicant's punishment included:

* reduction to the grade of private first class/E-3 (suspended for 3 months)
* forfeiture of $25.00 for 1 month
* restriction to the company area for 10 days
* extra duty for 10 days at 2 hours per day

10.  His DA Form 20 shows he departed Vietnam on 27 March 1970 and was assigned to the 50th Ordnance Company, Fort Carson, CO on 1 May 1970. 

11.  There is no indication in the available record that shows he was ever listed in an AWOL status.  Neither is there any documentation which shows he ever appeared before a promotion board, was recommended for promotion to the rank of SGT/E-5, that his name was incorporated into a HQDA promotion standing-list or that he met the cut-off score for promotion in his MOS and grade at any time during his period of service.  

12.  On 7 January 1971, he was honorably REFRAD after serving 3 years of total active service.  Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) of his 
DD Form 214 shows he was a SP4/E-4 at the time of his separation.  His date of rank was listed as 23 February 1969 and there is no lost time recorded. 

13.  The certificates and orders that the applicant provided all list his rank as SP4/E-4. 
 
14.  Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for the preparation of the DD Form 214.  Chapter 2 contained guidance on the preparation of the DD Form 214.  Item 5a showed the grade in which the enlisted Soldier was serving at time of separation, indicating whether permanent or temporary and item 5b showed the enlisted Soldier's pay grade.

15.  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.  It stated that an individual in pay grade E-4 was eligible for promotion consideration to pay grade E-5 after 
21 months of military service and 8 months of service in pay grade E-4, among several other requirements (education, security clearance, specialty qualification score, etc.).  Up to 4 months time in grade may be waived and up to 6 months time in service may be waived.  However, a unit commander’s recommendation was not sufficient for promotion and would not be used as a substitute for a recommendation resulting from selection by a selection board.  However, only two of the various promotion qualification requirements may be waived.  

16.  Paragraph 7-14 of the same regulation pertained to eligibility criteria for promotion of active Army Soldiers to pay grades E-5 and E-6 made against promotion point cutoff scores.  HQDA would determine the needs of the Army by grade and MOS.  Based on this need, the promotion point cutoff scores for primary and secondary zone promotions to grades E-5 and E-6 were announced authorizing commanders to promote the best qualified Soldiers Army wide in each MOS.  Enlisted personnel in grades E-5 through E-9, who were appointed to the next higher grade, reduced in grade, or whose grade was restored received official notification in routine orders.  

17.  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 applicant contends he was recommended for promotion on two occasions; however, he was not promoted due to an error in his record which indicated he was AWOL when he was actually hospitalized and serving in Vietnam. 

2.  The available evidence shows that while on leave from Vietnam, he became ill and was hospitalized.  A message from HQDA, TAG shows this information was correctly reported to his command in Vietnam and was filed in his record.  There is no entry in any part of the available record which lists the applicant as AWOL during the period in question.  As such, there is no relief necessary for this portion of his request. 

3.  The evidence of record shows that at the time of his separation on 7 January 1971, he held the rank/grade of SP4/E-4.  There is no evidence in the available record nor did he provide documentation to substantiate his contentions that he was recommended for promotion to SGT/E-5.  Regulatory guidance at that time required Soldiers being recommended for promotion to pay grades E-5 and E-6, appear before a selection board and to meet the HQDA promotion point cut-off score set for their MOS.

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)                                         AR20110020177





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ABCMR Record of Proceedings (cont)                                         AR20110020177



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