IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120002051 


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 his rank/grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5.

2.  The applicant states his DD Form 214 reflects the incorrect rank and grade. 

3.  The applicant provides a DA Form 2496-1 (Disposition Form), Subject: Recommended List for Promotion.

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's records show he was inducted into the Army of the United States on 13 August 1968.  He completed the training requirements and he was awarded military occupational specialty (MOS) 16F (Light Air Defense Artillery Crewmember).  He was advanced to corporal/E-4 on 12 January 1969.

3.  On 11 April 1969, Headquarters, U.S. Army Training Center, Air Defense, Fort Bliss, TX, published Special Orders Number 80 appointing him to the temporary (T) rank/grade of SGT/E-5, effective 11 April 1969.

4.  He served in Vietnam from 25 June 1969 to 24 June 1970.  He was assigned to Battery C, 1st Battalion, 44th Artillery Regiment.

5.  On 6 June 1970, he was recommended for promotion to SSG/E-6.  His name was subsequently placed on the Recommended List for Promotion of the 1st Battalion, 44th Artillery Regiment on 8 June 1970.

6.  During June 1970, he outprocessed various offices in Vietnam.  His U.S. Army Vietnam Form 137 (Installation Clearance Record) shows his rank as SGT.

7.  On 24 June 1970, Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, published Special Orders Number 175 showing he was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) effective 24 June 1970.  These orders listed his rank as a SGT.

8.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the entry SGT/E-5 as the highest rank/grade he held. 

9.  His service records do not contain official orders promoting him to SSG/E-6. 

10.  He was honorably released from active duty on 24 June 1970.  He completed 1 year, 10 months, and 12 days of creditable active service.  His DD Form 214 shows in:

* Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) the entries "SGT" and "E-5" respectively
* Item 6 (Date of Rank) shows the entry "11 April 1969"

11.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.  
12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It states items 5a and 5b will show the active duty rank and pay grade at time of the Soldier's separation; the rank is taken from the Soldier’s promotion/reduction orders; and item 6 shows the date of rank.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in his records and he did not provide any evidence that shows he was promoted to SSG/E-6 prior to his honorable release from active duty on 24 June 1970.  His DA Form 20 shows the highest rank/grade he attained was SGT/E-5 and his separation orders listed his rank as a SGT.  

2.  He was recommended for promotion to SSG/E-6.  But his promotion would have been contingent on availability of a higher position.  His service records do not contain official orders promoting him to SSG/E-6.  In the absence of documentary evidence confirming he was promoted or appointed to SSG/E-6, there is insufficient evidence to grant him the 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)                                         AR20120002051





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ABCMR Record of Proceedings (cont)                                         AR20120002051



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