IN THE CASE OF:	  

		BOARD DATE:	  3 January 2013

		DOCKET NUMBER:  AR20120009976 


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 at the time of discharge as specialist five (SP5)/E-5 instead of specialist four (SP4)/E-4.

2.  The applicant states he was a SP5/E-5 at the time of discharge. 

3.  The applicant did not provide any evidence.

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 enlisted in the Regular Army for 3 years on 10 September 1962 and he held military occupational specialty 76K (Supply Specialist).  
3.  He served in Germany from 29 January 1963 to 20 August 1965.  He was assigned to Headquarters Troop, 3rd Reconnaissance Squadron, 12th Cavalry Regiment, 3rd Armored Division.

4.  His records do not contain promotion/appointment orders to any grade.  However, his records contain two DA Forms 24 (Service Record) and a DA Form 20 (Enlisted Qualification Record), as follows:

	a.  DA Form 24 covering the period 10 September 1962 to 2 September 1965 shows in Section 1 - Appointments, Promotions or Reduction the following grades and effective dates:

* private (PVT)/E-1, 10 September 1962
* private (PVT)/E-2, 10 January 1963
* private first class (PFC)/E-3, 14 May 1963, by Unit Orders Number 29, issued by Headquarters Troop, 3rd Reconnaissance Squadron, 12th Cavalry
* SP4/E-4, 18 July 1964, 18 July 1964, by Unit Orders Number 54, issued by Headquarters Troop, 3rd Reconnaissance Squadron, 12th Cavalry

	b.  DA Form 24 covering the period 10 September 1962 to 2 September 1965 shows in Section 1 the following grades and effective dates:

* SP4/E-4 (P (Permanent)) - 18 July 1965, paragraph 23 of Army Regulation 624-200 (Appointment and Reduction of Enlisted Personnel)
* SP5/E-5 (T (Temporary)) - 21 July 1965, Special Orders 181, paragraph 68, Headquarters, 3rd Armored Division, 1965
* SP5/E-5 (P) - 3 September 1965, paragraph 8, Army Regulation     140-158 (Enlisted Personnel Classifications, Promotions, and Reductions)

	c.  DA Form 20 which shows in item 2 (Grade) the entry "SP5/E-5" and in item 11 (Reserve Status) the entry "SP5/E-5." 

5.  On 2 September 1965, Headquarters, U.S. Army Personnel Center, Fort Hamilton, NY, published Special Orders Number 245 ordering his release from active duty effective 2 September 1965 and transfer to the U.S. Army Reserve (USAR) Control Group to complete his remaining obligation.  The orders listed his rank/grade as SP4/E-4.

6.  He was honorably released from active duty on 2 September 1965 and he was transferred to the USAR Control Group to complete his remaining service obligation.  His DD Form 214 for this period of service shows in:

* Item 3a (Grade, Rate or Rank) - SP4/E-4 (P) See item number 32 (Remarks)
* Item 3b (Date of Rank) – “18 Jul 64”
* Item 32 - the entry "Item #3b: Date of Appointment: 18Jul65"

7.  On 8 September 1967, by letter, an official at the USAR Personnel Center notified him that a review of his military records failed to substantiate his promotion to SP5/E-5.  He was asked to provide a copy of the promotion orders if he had one.

8.  On 22 September 1967, Office of the Adjutant General, U.S. Army Administration Center, St. Louis, MO published Letter Orders 09-329900 discharging him from the USAR effective 10 September 1967 by reason of having completed his service obligation.  The orders listed his rank as SP4.

9.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  Chapter 2 of the regulation in effect at the time contained guidance on the preparation of the DD Form 214 and stated that items 3a and 3b shows the rank/grade and date of rank at the time of separation.

10.  Army Regulation 624-200 (Appointment and Reduction of Enlisted Personnel), effective 1 July 1962, section III, governed the temporary appointment of enlisted personnel of the active Army to pay grades E-4 through E-9 made against periodic temporary appointment quota allocations issued by Headquarters, Department of the Army.  The regulation stated that control would be exercised by all appointment authorities to ensure that appointments did not exceed local pay grade vacancies, major command ceilings, or allotted quotas.

11.  Army Regulation 624-200 was superseded by chapter 7 of Army Regulation 600-200 (Enlisted Personnel Management System), effective March 1965. Paragraphs 7-13 and 7-14 of Army Regulation 600-200 provided the same guidance as noted in Army Regulation 624-200.

DISCUSSION AND CONCLUSIONS:

1.  Although there are no promotion orders confirming his promotion to SP5/E-5 and although one of his DA Forms 24 shows his highest rank/grade was that of SP4/E-4, a second DA Form 24 listed his rank/grade as SP5/E-5 (T), effective   21 July 1965 by authority of Special Orders Number 181, issued by Headquarters, 3rd Armored Division, on 21 July 1965. 

2.  The SP5/E-5 rank/grade is further annotated in item 2 of his DA Form 20 which replaced the DA Form 24 and shows his rank/grade as SP5/E-5 but without the authority and/or effective date for the rank/grade. 

3.  Despite the absence of conclusive evidence confirming his promotion to SP5/E-5, any doubt should be ruled in his favor.  Therefore, his DD Form 214 should be corrected to show his rank/grade at the time of discharge as SP5/E-5 (T) with an effective date of 21 July 1965.  

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

* deleting from items 3a and 3b the entries SP4/E-4 (P) See item 32 and   18 July 1964 and adding the entries SP5/E-5 (T) See item 32 and 21 July 1965
* deleting from item 32 the entry Item Number 3b: Date of Appointment: 18 July 1965 and adding the entry Item Number 3b: Date of Appointment: 21 July 1965



      _______ _   __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)                                         AR20120009976





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ABCMR Record of Proceedings (cont)                                         AR20120009976



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