IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110024236 


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 specialist five (SP5)/pay grade E-5.

2.  The applicant states he recently found a document showing he was promoted to SP5/E-5.

3.  The applicant provides copies of a request for waiver, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and
DD Form 215 (Correction to DD Form 214), dated 7 July 1999.

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.  The applicant enlisted in the Regular Army for a period of 3 years on 8 March 1967.  He was awarded military occupational specialty 62E (Heavy Equipment Operator) and assigned overseas for service in the Republic of Vietnam on
10 October 1967.

3.  Company A, 299th Engineer Battalion (Combat), Unit Orders Number 8, dated 17 January 1968, promoted the applicant to the temporary (T) grade of specialist four (SP4)/pay grade E-4.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 2 (Grade) - SP4 E-4;

	b.  item 3 (Date of Rank (DOR)) - 17 January 1968;

   c.  item 33 (Appointments and Reductions) the highest grade he attained was SP4/E-4 (T) with a DOR of 17 January 1968 per Company A, 299th Engineer Battalion (Combat), Unit Orders Number 8 (1968); and

	d.  item 48 (Date of Audit) - 28 September 1968.

5.  Two DA Forms 1049 (Personnel Actions), both dated 21 June 1968, show the applicant was granted waivers for the time in grade and time in service requirements for promotion to SP5/E-5, and recommended for promotion to SP5/E-5 (T).

6.  Headquarters, 299th Engineer Battalion (Combat), Letter Orders Number 
6-57, dated 21 June 1968, authorized the applicant 30 days of special leave, effective 12 July 1968.  The orders show his rank was SP4/E-4.

7.  Headquarters, Madigan General Hospital, Tacoma, Washington, Special Orders Number 196, dated 25 September 1968, show the applicant was hospitalized on 17 August 1968 and reassigned to the Medical Hold Company, Madigan General Hospital, effective 28 September 1968.  The orders show the applicant's rank was SP4/E-4.

8.  Headquarters, Madigan General Hospital, Tacoma, Washington, Special Orders Number 238, dated 25 November 1968, honorably discharged the applicant based on physical disability, effective 25 November 1968.  The orders show the applicant's rank was SP4.

9.  A DD Form 214 (Copy 2 - Service), as corrected by a DD Form 215, dated
7 July 1999, shows the applicant was honorably discharged on 25 November 1968 based on physical disability.  He completed 1 year, 8 months, and 17 days of net active service that included 9 months and 14 days of foreign service.

   a.  It shows in:

* item 5a (Grade, Rate or Rank) - "SP4 (T)"
* item 5b (Pay Grade) - "E-4"
* item 6 (DOR) - "4 May 68"  

	b.  It also shows in:

* item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) - "National Defense Service Medal"
* item 25 (Education and Training Completed) - "Heavy Equipment Operator, Fort Leonard Wood, Mo, 8 weeks, 1967"

   c.  Item 32 (Signature of Person Being Transferred or Discharged) shows the applicant placed his signature on the document.

10.  There are no orders or other evidence in the applicant's military personnel records that show he was promoted (emphasis added) to pay grade E-5.

11.  The applicant provides a copy of his DD Form 214 (Copy 4 - Member) that shows significant differences for the entries in items 24 and 25 as compared to those of the DD Form 214 (Copy 4 - Service) that is filed in his military service records.  

12.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribes policies and procedures regarding separation documents.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.

	b.  The instructions for item 5a, item 5b, and item 6 state "Self-explanatory."


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military service records should be corrected to show he was promoted to pay grade E-5.

2.  Records show the applicant was promoted to SP4/E-4 (T) effective and with a DOR of 17 January 1968.

3.  Records show the applicant was granted waivers for the time in grade and time in service requirements for promotion to SP5/E-5, and recommended for promotion to SP5/E-5 (T) on 21 June 1968.  Shortly thereafter, on 12 July 1968, he left his overseas unit on special leave.  He was admitted to the hospital on
17 August 1968 and reassigned to a Medical Hold Company on 28 September 1968.  All of these records show the applicant's rank/grade as SP4/E-4.

4.  There is no evidence of record to show the applicant was promoted to the pay grade of E-5 during the period of service under review.

5.  The applicant's DD Form 214 shows he was discharged on 25 November 1968 in the rank of SP4/E-4 with a DOR of 4 May 1968.  Thus, records confirm the rank and pay grade shown on the applicant's DD Form 214 are correct and the applicant is not entitled to correction of his records to show he was promoted to pay grade E-5.  It is noted that the DOR shown on his DD Form 214 is incorrect.

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)                                         AR20110024236



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ABCMR Record of Proceedings (cont)                                         AR20110024236



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