IN THE CASE OF:
BOARD DATE: 20 March 2012
DOCKET NUMBER: AR20120000016
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 the records of her deceased former spouse, a former service member (FSM), be corrected to show he was promoted to the grade/rank of sergeant (SGT)/E-5.
2. The applicant states her husband was promoted to SGT upon the expiration of his term of service (ETS) but he never received the orders.
3. The applicant provides:
* Email, dated 24 October 2011
* Two DD Forms 4 (Enlistment Contract-Armed Forces of the United States)
* U.S. Army Enlisted Evaluation Center (USAEEC) Form 10 (Enlisted Evaluation Data)
* Two DA Forms 2166-4 (Enlisted Efficiency Report), dated 29 March 1972 and 17 September 1973
* DA Form 20 (Enlisted Qualification Record), pages 1, 3, and 4
* Honorable Discharge Certificate, dated 22 September 1976
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
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 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. After having served in the U.S. Army Reserve, the applicant enlisted in the Regular Army in the rank/grade of private/E-1 on 15 October 1970. He held the military occupational specialty 31M (Multichannel Communications Equipment Operator). He was assigned to A Company, 11th Air Defense Signal Battalion, in Germany.
3. Item 33 (Appointments and Reductions) of his DA Form 20 shows:
* he was promoted to private first class/E-3, on 7 May 1971, by the authority of Special Orders Number 7, issued by Headquarters, U.S. Army Signal School, Fort Gordon, GA
* he was promoted to specialist four (SP4)/E-4, on 29 March 1972, by the authority of Unit Orders Number 14, issued by Company A, 11th Signal Battalion
4. His record does not contain official orders appointing or promoting him to SGT/E-5.
5. He was honorably released from active duty on 15 October 1973. His
DD Form 214 shows in:
* items 5a (Grade, Rate, or Rank) - SP4
* item 5b (Pay Grade) - E-4
* item 6 (Date of Rank) - 29 March 1972
6. The applicant provided two DD Forms 4, a USAEEC Form 10, two DA Forms 2166-4, two DA Forms 20, and an Honorable Discharge Certificate as evidence in this case.
7. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The version in effect at the time stated items 5a and 5b show the rank/grade in which a member was serving at the time of separation and item 6 shows the date of rank for the grade shown in item 5a.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was promoted to SP4/E-4 on 29 March 1972. There is no evidence that he was promoted or appointed above this rank/grade between the date of this promotion and the date of separation from active duty.
2. The governing regulation provides that items 5a and 5b will show the active duty rank and pay grade at the time of the Soldier's separation; the rank is taken from the Soldiers promotion/reduction orders. The applicant's DD Form 214 correctly lists his rank and grade. There is neither an error nor an injustice.
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) AR20120000016
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ABCMR Record of Proceedings (cont) AR20120000016
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