IN THE CASE OF:
BOARD DATE: 7 June 2012
DOCKET NUMBER: AR20110023962
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 his rank on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to read sergeant (SGT) instead of specialist five (SP5).
2. The applicant states he was discharged as a sergeant/pay grade E-5.
3. The applicant provides his DD Form 214.
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. He was inducted into the Army of the United States on 23 July 1969. He completed basic combat and advanced individual training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).
3. On 21 May 1970, he received a permanent profile for hearing loss in his left ear. He was determined to be medically qualified for limited duty. His duty limitations were no assignment involving habitual or frequent exposure to loud noises or firing of weapons. A change of MOS was recommended if necessary.
4. On 2 November 1970, he was awarded secondary MOS 64A (Light Vehicle Driver).
5. His DA Form 20 (Enlisted Qualification Record) shows he was promoted to specialist five/pay grade E-5 on 5 November 1970. His Military Personnel Records Jacket (MPRJ) does not contain his orders for promotion.
6. His orders for release from active duty identify him as a specialist five.
7. On 7 May 1971, he was released from active duty. He completed 1 year,
9 months, and 15 days of active service that was characterized as honorable. His DD Form 214 shows his rank on the date of his separation as specialist five.
8. Army Regulation 600-200 (Enlisted Personnel Management System), then in effect, stated a Soldier's commander could convert a Soldier's rank from corporal/sergeant to specialist four/specialist five without the Soldier's consent due to his medical inability to perform the required duties of a noncommissioned officer in that MOS.
9. Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214. This regulation stated that the active duty grade at the time of separation will be entered on the DD Form 214.
10. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
There are no orders promoting him to pay grade E-5 in his MPRJ. Promotion orders would indicate whether he was promoted to sergeant or specialist five. In the absence of promotion orders or any other evidence to the contrary, it is presumed that the Army's administrative processing of the applicant was correct and that the entry "SP5" on his DD Form 214 is correct.
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) AR20110023962
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ABCMR Record of Proceedings (cont) AR20110023962
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