IN THE CASE OF:
BOARD DATE: 17 January 2013
DOCKET NUMBER: AR20120009523
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 as sergeant (SGT) and not specialist five (SP5).
2. The applicant states the rank of SP5 was discontinued by the U.S. Army on 10 October 1985. He would like his uniform to reflect the current rank when he plays "Taps" at the funerals of his fellow Soldiers.
3. The applicant 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 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. He enlisted in the Regular Army on 18 March 1968. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 67X (Flight Engineer).
3. His DA Form 20 (Enlisted Qualification Record) shows he was promoted to the rank of SP5, pay grade E-5, on 29 August 1969. This document also shows he served in the Republic of Vietnam from 27 February 1969 to 12 February 1970.
4. On 14 February 1970, he was released from active duty. He completed
1 year, 10 months, and 27 days of active service that was characterized as honorable. His DD Form 214 shows his rank on the date of separation as SP5.
5. A review of the regulatory guidance, in effect at the time, shows in:
a. Army Regulation 600-200, chapter 7, contained Army-wide promotion policy and procedures. It stated that the promotion of enlisted personnel to grades E-5 through E-9, appointments, grade reductions, and grade restorations were announced in routine orders.
b. Army Regulation 600-20 (Army Command Policy) shows that at the pay grade E-5 a Soldier could be either a SGT or a SP5. A sergeant normally held a leadership position while a specialist performed duties based on their acquired proficiency in the technical or administrative aspects of their MOS field.
c. Army Regulation 635-5 (Separation Documents) established the standardized policy for preparing and distributing the DD Form 214. This regulation stated that the active duty rank and pay grade at the time of separation will be entered on the DD Form 214.
6. Army Regulation 670-1 (Wear and Appearance of the Army Uniforms and Insignia) states:
a. Former members of the Army may wear the uniform if they served honorably during a declared or undeclared war, and if their most recent service was terminated under honorable conditions. Personnel who qualify under these conditions will wear the Army uniform in the highest grade they held during such war service, in accordance with Title 10 U.S. Code, section 772.
b. The uniform is authorized for wear only for the ceremonial occasions, to include military funerals and memorial services, and when traveling to and from the ceremony or function.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests correction of his DD Form 214 to show his rank as SGT.
2. The Army structure at the time of the applicant's separation authorized the rank of SGT and SP5. This was done in order to distinguish Soldiers who held leadership positions from those who held technical/administrative positions. In either case, promotion orders would indicate whether they were promoted to SGT or SP5. There are no orders promoting him to the rank of SGT in his records. In the absence of promotion orders or any other evidence to the contrary, it is presumed that the rank "SP5" shown on his DD Form 214 is correct.
3. However, regulatory guidance permits former members of the Army to wear the uniform if they served honorably during a declared or undeclared war, and if their most recent service was terminated under honorable conditions. Personnel who qualify under these conditions will wear the Army uniform in the highest grade they held during such war service. The evidence of record shows he served during the Vietnam War and held pay grade E-5 which would authorize him to wear the current SGT insignia on his uniform.
4. In view of the above, his request should be denied.
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.
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