BOARD DATE: 14 June 2012
DOCKET NUMBER: AR20120000622
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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he held pay grade E-5 and he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar for his qualification score with the M-16 Rifle.
2. He states he has documentation stating he was an E-5.
3. He provides his DD Form 214 and a page from a memorandum, subject: Recommended List for Promotion of Enlisted Personnel.
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. On 7 May 1969, the applicant was inducted into the Army of the United States. After completing initial entry training, he was awarded military occupational specialty 44C (Welder).
3. Orders show he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar based on his qualifying score with the M-14 Rifle.
4. His record is void of documentation showing he qualified with the M-16 Rifle.
5. Item 33 of his DA Form 20 (Enlisted Qualification Record) shows he was promoted to specialist four (SP4)/E-4 on 26 February 1970.
6. Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, issued Special Orders Number 95 Extract, dated 5 April 1971, releasing the applicant from active duty and assigning him to the U.S. Army Reserve (USAR) Control Group (Annual Training), in the rank of "SP4."
7. His DD Form 214 shows he was honorably released from active duty on 5 April 1971 after completing 1 year, 10 months, and 29 days of total active service. Item 5a (Grade, Rate or Rank) shows "SP4," and item 5b (Pay Grade) shows "E-4."
8. Orders show he was discharged from the USAR, effective 1 May 1975, in the rank of "SP4."
9. His record is void of documentation showing he was promoted to pay grade "E-5."
10. He provides a memorandum, dated 24 January 1971, from Headquarters, 92d Composite Service Battalion, announcing individuals who had been selected for promotion to E-5 on 22 January 1971. His name is 23d on the list.
11. Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time, provided promotion policy for enlisted members. Chapter 7 (Promotion and Reduction) stated promotion selection boards were to list individuals recommended for promotion to E-5 in order of merit. Commanders with promotion authority were to promote otherwise qualified individuals from the recommended list in order of merit against existing or projected unit vacancies. Publication of orders was required for promotion to E-5.
DISCUSSION AND CONCLUSIONS:
1. The available records show the applicant was recommended for promotion to pay grade "E-5," but it appears he was released from active duty before he was selected to fill an "E-5" vacancy in his unit.
2. Placement on a recommended list for promotion does not confer entitlement to a higher grade. He would have had to wait for an existing or projected "E-5" vacancy in his unit and he would have had to wait until those above him in the order of merit were promoted. In the absence of evidence showing he was actually promoted to "E-5" there is no basis for correcting his record to show he held this pay grade.
3. His record is void of documentation showing he qualified with the M-16 Rifle. Therefore, there is no basis for correcting his record to show he was awarded a badge based on an expert qualification score with the M-16 Rifle.
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) AR20120000622
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