BOARD DATE:	  2 October 2012 

		DOCKET NUMBER:  AR20120006094 


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 item 3a (Grade, Rate or Rank) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show sergeant (SGT)/E-5 vice specialist four (SP4)/E-4.

2.  The applicant states effective 18 April 1961, at the request of his company commander, he served as a SGT/E-5, training SGT until his release from active duty on 6 July 1961.  His appointment was necessary due to an immediate transfer and lack of a replacement.  He considered it an honor to be asked to serve in this position.  The commander stated the rank/grade of SGT/E-5 would be made permanent soon or at least by the expiration of his term of service.

3.  The applicant provides his DD Form 214, orders, DA Form 1315 (Reenlistment Data Card), an identification card, and two membership cards.

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 7 July 1959 in the rank/grade of private (PVT)/E-1 and he held military occupational specialty (MOS) 716.10 (Personnel Specialist).

3.  His DA Form 24 (Service Record) shows he was promoted as follows to:

* PVT/E-2, on 7 November 1959
* private first class/E-3, on 9 March 1960
* SP4/E-4 (T (Temporary)), on 13 September 1960

4.  His record does not contain orders showing he was promoted to SGT/E-5.

5.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Company D, 1st Battalion, U.S. Army Infantry Center Troop Command, Fort Benning, GA, as the mailroom clerk in duty MOS 716.10 and rank/grade SP4/E-4 from 16 May 1960 to 6 July 1961.

6.  Special Orders Number 144, dated 30 June 1961, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, released him from active duty effective 6 July 1961.  His rank/grade is shown as SP4/E-4 (T).

7.  He was honorably released from active duty on 6 July 1961 and transferred to the U.S. Army Reserve.  He completed 2 years of net active service.

8.  Item 3a of the DD Form 214 he was issued shows his rank/grade as SP4/
E-4(T).

9.  The applicant provides Order Number 22, dated 18 April 1961, issued by Company D, 1st Battalion, U.S. Army Infantry Center Troop Command, Fort Benning, GA, wherein it states the applicant was appointed as an acting SGT/E-5.  This order was signed by the company commander, a first lieutenant.

10.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated:

	a.  For enlisted personnel to grades E-3 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders.  Field grade commanders in the rank of lieutenant colonel or higher could promote to E-5.

	b.  Company commanders may appoint qualified individuals as acting
SGT/E-5, to serve in position vacancies existing in their units resulting from absences of assigned noncommissioned officers (NCOs).  Acting NCOs may wear the insignia of the grade; however, acting NCOs are not entitled to pay and allowances for such higher grades, and service will not be credited as time in a higher grade for promotion or date-of-rank purposes.  An acting SGT's status will be terminated at the discretion of the unit commander who made the appointment, upon assignment of a regularly promoted NCO to the position, or upon reassignment to another unit.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It states in item 3a enter the active duty rank held at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows at the time the applicant was separated, on 6 July 1961, he held the rank of SP4/E-4 (T).  Although he may have been serving as an acting SGT prior to his release from active duty, this simply meant he was allowed to wear the rank of SGT but it did not entitle him to the pay/allowances of the rank and was not creditable for promotion purposes.  

2.  In addition, this was a temporary appointment that was terminated upon his release from the unit.  His record is void of orders promoting him to SGT/E-5.  The evidence of record does not show and he has not provided any evidence that shows he was promoted to SGT/E-5 prior to his separation.  Therefore, he is not entitled to 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)                                         AR20120006094





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ABCMR Record of Proceedings (cont)                                         AR20120006094



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