IN THE CASE OF:
BOARD DATE: 3 May 2012
DOCKET NUMBER: AR20110021387
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 records to show he was promoted to pay grade E-5.
2. He states, in effect, he was told he would be promoted to pay grade E-5 for saving lives while he was assigned to the 8th Engineer Battalion, 1st Cavalry Division. He was also told he would be promoted to E-5 before he was transferred to the 18th Engineer Brigade.
3. He provides no additional documents.
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 was inducted into the Army of the United States on 15 April 1970. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12A (Pioneer). He was assigned to Vietnam with Headquarters and Headquarters Company, 8th Engineer Battalion, 1st Cavalry Division on 1 December 1970. He was transferred to the 18th Engineer Brigade on 15 March 1971 and to Company D, 20th Engineer Battalion on 3 April 1971.
3. On 16 April 1971, he departed Viet Nam in a patient status and remained in a patient status until 1 June 1971. He was assigned to Fort Knox, KY in a duty status on 2 June 1971.
4. He was promoted to specialist four (SP4)/E-4 on 20 August 1971.
5. On 19 November 1971, he was honorably released from active duty by reason of early release to attend school. His DD Form 214 shows the entry "SP4" and "E-4," respectively.
6. His service record does not contain any evidence which indicates he was promoted to E-5 or that he was ever recommended for promotion before he was released from active duty on 19 November 1971.
7. Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7 (Promotion and Reduction) governed the promotion of enlisted Soldiers for grades E-3 through E-9. It stated that promotion of enlisted personnel in grades E-3 through E-9 would be announced in routine orders. For promotion to grades E-5 and E-6, orders would be issued for Soldiers who equaled or exceed the Department of the Army promotion point cut-off for their MOS. The effective date of promotion is the first calendar day of the month the Soldier is eligible and equals or exceeds the announced DA promotion point cut-off score. It further stated that a precondition service obligation was established as 3 months for promotion to grade E-5. Waivers would not be granted.
DISCUSSION AND CONCLUSIONS:
1. The applicants statements regarding his promotion to E-5 are acknowledged; however, there is insufficient evidence to determine that an error or injustice exists in this case.
2. He has failed to show through the evidence submitted and the evidence of record that he attained or exceeded the promotion cut-off score for his MOS or that he was promoted to the pay grade of E-5 prior to release from active duty.
3. His service record is void of evidence which indicates he was recommended for promotion while in Vietnam.
4. Therefore, in the absence of evidence showing he was promoted to pay grade E-5, it must be presumed that what the Army did at the time was correct and in accordance with applicable regulations in effect at the time. The burden of proving otherwise rests with the applicant.
5. In view of the foregoing, there is no 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) AR20110021387
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ABCMR Record of Proceedings (cont) AR20110021387
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