IN THE CASE OF:	  

		BOARD DATE:	    24 July 2012

		DOCKET NUMBER:  AR20120000752 


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 the rank/grade of sergeant (SGT)/E-5.

2.  The applicant states he was recommended for promotion to E-5 in March 1970; however, his promotion orders arrived at his unit after he was released from active duty (REFRAD).

3.  The applicant provides:

* Unit Orders Number 21, issued by Company C, 508th Military Police Battalion, Fort Riley, KS, dated 18 March 1970
* his 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 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 on 7 November 1967 for a period of 3 years.  He was awarded military occupational specialty 95B (military policeman) and he assigned overseas for service in the Republic of Vietnam (RVN) on 4 October 1968.

3.  Unit Orders Number 72, issued by Company C, 720th Military Police Battalion, dated 13 November 1968, promoted the applicant to the temporary (T) rank/grade of specialist four (SP4)/E-4.

4.  Unit Orders Number 21, dated 18 March 1970, appointed the applicant as an acting noncommissioned officer (NCO) in the rank/grade of SGT/E-5.

5.  On 27 March 1970, the applicant's company commander recommended him for promotion to SGT/E-5.  On 28 April 1970, he appeared before a local promotion selection board and he was recommended for promotion to SGT/E-5.

6.  A memorandum, issued by Headquarters, 508th Military Police Battalion, Fort Riley, subject:  Standing List for Promotion of Enlisted Personnel in Grade E-5, dated 10 August 1970, shows the applicant was integrated into the standing list based on being recommended for promotion to E-5 on 28 April 1970 with 542.5 promotion points.  It further states upon receipt of promotion quotas, the personnel listed will be promoted in order indicated until the promotion list is exhausted.  The applicant's standing on the order of merit list is number 16 of 24.

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

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

	b.  item 3 (Date of Rank (DOR)) the entry 13 November 1968;

	c.  item 33 (Appointments and Reductions) the highest grade he attained was:

		(1)  SP4/E-4 (T) with a DOR of 13 November 1968 per Unit Orders Number 72 dated in 1968; and

		(2)  SP4/E-4 Permanent (P) with a DOR of 13 November 1968 per Army Regulation 600-200 (Enlisted Personnel Management), paragraph 7-22.


	d.  item 48 (Date of Audit) the entry 8 May 1970.

8.  On 1 June 1970, the applicant submitted a request for early release to attend school.  The request shows the applicant indicated his rank/grade was SP4/E-4 and he placed his signature of the document.

9.  Special Orders Number 147, issued by Headquarters, 1st Infantry Division (Mechanized), Fort Riley, dated 8 September 1970, REFRAD the applicant effective 11 September 1970 and transferred him to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.  These orders show his rank as SP4.

10.  The DD Form 214 he was issued at the time shows he completed 2 years,
10 months, and 4 days of total active service, including 1 year of foreign service in the RVN.  It further shows in:

* item 5a (Grade, Rate or Rank) the entry "SP4"
* item 5b (Pay Grade) the entry "E-4"
* item 6 (DOR) the entry "13 Nov 68"
* item 32 (Signature of Person Being Transferred or Discharged) the applicant's signature

11.  There is no evidence of record and the applicant did not provide any evidence that shows he was promoted to SGT/E-5 prior to the effective date of his REFRAD.

12.  In support of his application, the applicant provides a copy Unit Orders Number 21, dated 18 March 1970, that appointed him as an acting NCO in the grade of SGT.

13.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's REFRAD, 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 and orders.

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


14.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribes policies and procedures for managing enlisted personnel, including promotions and reductions in grade.  Section VI covers appointment of acting NCOs.  It states an acting NCO's status will automatically terminate:

* On assignment of a regularly promoted NCO to the position
* When casual groups reach their destination
* On reassignment from Drill Sergeant duties
* On reassignment to another unit

DISCUSSION AND CONCLUSIONS:

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

2.  Records show the applicant:

* was promoted to SP4/E-4 effective and with a DOR of 13 November 1968
* was appointed as an acting NCO (emphasis added) in the rank/grade of SGT/E-5 on 18 March 1970
* was recommended for promotion to SGT/E-5 by his commander on
27 March 1970
* appeared before a promotion selection board and recommended for promotion to SGT/E-5 on 28 April 1970
* was integrated into the order of merit standing list for promotion to
SGT/E-5

3.  Records also show that on 8 May, 1 June, and 11 September 1970 the applicant either reviewed or placed his signature on documents confirming his rank/grade was SP4/E-4.

4.  There is no evidence of record and the applicant did not provide any evidence that shows he was promoted to SGT/E-5 during the period of service under review.

5.  Additionally, as an acting NCO, the applicant's acting NCO status would have automatically terminated upon his REFRAD.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120000752



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ABCMR Record of Proceedings (cont)                                         AR20120000752



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