DOCKET NUMBER:  AR20120003815 


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, in effect, correction of item 32 (Remarks) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he held the permanent rank/grade of sergeant (SGT)/E-5 and he was entitled to pay at the E-5 rate upon separation.

2.  He states he should have been paid at the E-5 rate rather than the private first class (PFC)/E-3 rate when he was discharged.

3.  He provides his DD Form 214.

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 15 November 1963.

3.  Section 1 (Appointments, Promotions, or Reductions) of his DA Form 24 (Service Record) shows:

	a.  PFC/E-3 (permanent (P)) effective 18 July 1964 by authority of Unit Orders Number 40, Headquarters, 1st Battalion, 18th Infantry Regiment, Fort Riley, KS, dated 18 July 1964;

	b.  specialist four (SP4)/E-4 (temporary (T)) effective 12 December 1964 by authority of Unit Orders Number 68, Headquarters, 1st Battalion, 18th Infantry Regiment, Fort Riley, KS, dated 12 December 1964;

	c.  SP4/E-4 (P) effective 12 December 1964 by authority of Army Regulation 600-200 (Enlisted Personnel Management System), dated 13 August 1965; and

	d.  SGT/E-5 (T) effective 14 August 1965 by authority of Special Orders (SO) Number 23, Headquarters, 2nd Brigade, 1st Infantry Division, Vietnam, dated 14 August 1965.

4.  He was honorably released from active duty on 3 November 1965 and transferred to the U.S. Army Reserve (Annual Training).  His DD Form 214 shows he completed a total of 1 year, 11 months, and 19 days of creditable active service.  His DD Form 214 also shows the following entries:

* item 3a (Grade, Rate, or Rank) – "SGT/E-5 (T)"
* item 3b (Date of Rank) – "14 AUG 65"
* item 32 (Remarks) – "ITEM 3A – PFC E-3 (P) APTD 18 JUL 64"

5.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  This regulation stated to enter the grade in which serving at the time of separation, indicating whether permanent or temporary.  Enter the date of rank shown and if the date of rank is different from the date of appointment, enter the date of appointment in item 32 of the DD Form 214.  If the grade as shown in item 3a is not permanent, enter the permanent grade, date of appointment, and date of rank in item 32 if different from the date of appointment.

6.  Title 31 U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.

7.  The equitable Doctrine of Laches permits dismissal of a claim when an applicant's unreasonable delay in asserting an error or injustice makes it impossible for the Army to retrieve information necessary to evaluate an applicant's asserted basis for relief.

DISCUSSION AND CONCLUSIONS:
1.  The evidence of record shows the applicant's DD Form 214 correctly shows he was promoted to the temporary rank/pay grade of SGT/E-5 effective 14 August 1965.

2.  However, section 1 of his DA Form 24 shows he was permanently appointed in rank/pay grade SP4/E-4 on 13 August 1965.  Therefore, he is entitled to correction of item 32 of his DD Form 214 to show "ITEM 3A – SP4 E-4 (P) APTD 13 AUG 65."

3.  During the applicant's period of service Soldiers were paid based upon their temporary grade in cases where it was higher than their permanent grade.  Therefore, it is presumed he was paid as an E-5 at the time of his separation.

4.  With respect to his alleged entitlement to unpaid pay and allowances, irrespective of the Barring Act, a service member claiming additional pay and allowances previously accrued but not paid has the burden of proving that he/she was not paid the pay and allowances claimed.  There is no evidence in his record nor did he submit any evidence that shows he is entitled to any unpaid pay and allowances.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  __x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 as follows:

	a.  deleting the entry "ITEM 3A – PFC E-3 (P) APTD 18 JUL 64" from item 32 and

	b.  adding the entry "ITEM 3A – SP4 E-4 (P) APTD 13 AUG 65" to item 32.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing his permanent rank as SGT/E-5 and entitlement pay at the SGT/E-5 rate at the time of his separation.



      ___________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)                                         AR20120003815



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ABCMR Record of Proceedings (cont)                                         AR20120003815



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