IN THE CASE OF:	  

		BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120010796 


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 that items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show the rank of specialist five (SP5) and pay grade of E-5.

2.  The applicant states that prior to his separation in February 1971, he had successfully passed the promotion board for SP5/E-5.  He waited on his promotion orders but they never came.  The orders finally caught up with him in the spring of 1971 but these orders were misplaced or lost.  

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 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 24 February 1969 in the rank/grade of private/E-1.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Cook). 

3.  Upon completion of training, he was assigned to the U.S. Army Reception Station (USARECSTA), Fort Bragg, NC.  While at Fort Bragg, USARECSTA published:

* Unit Orders Number 37, advancing him to private first class/E-3 on 24 August 1969
* Unit Orders Number 40, advancing him to specialist four (SP4)/E-4 on 24 November 1969

4.  He served in Germany from 3 March 1970 to 13 February 1971.  He was assigned to Troop F, 2nd Squadron, 2nd Armored Cavalry Regiment (ACR).  

5.  On 29 October 1970, he appeared before the 2nd Squadron, 2nd ACR promotion board.  He was recommended for promotion to SP5/E-5 in his MOS of 94B and his name was added to the recommended list. 

6.  There are no special orders in the applicant’s record that show he was promoted to SGT/E-5.

7.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he held was that of SP4/E-4.

8.  On 24 February 1971, Headquarters, U.S. Army Personnel Center, Fort Dix, NJ, published Special Orders Number 55 ordering his release from active duty effective 24 February 1971.  The orders listed his rank as SP4.

9.  He was honorably released from active duty on 24 February 1971 and transferred to the U.S. Army Reserve Control Group (Annual Training).  Items 5a and 5b of the DD Form 214 he was issued show the entries "SP4" and "E-4" respectively.  Additionally, item 6 (Date of Rank) shows the entry "24 Nov 69 [November 1969]."

10.  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 part, that the promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.  

11.  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 their military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It states, in part, that 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.  The evidence of record shows that at the time of separation, 24 February 1971, the applicant held the rank/grade of SP4/E-4.  Although he was recommended for promotion to rank/grade of SP5/E-5, the recommendation did not equate a firm promotion.  His record is void of any orders promoting him to SP5/E-5 and item 33 of his DA Form 20 does not show an entry for a promotion and/or appointment to SP5/E-5.

2.  Promotions of enlisted personnel to grades E-5 through E-9 were announced in orders.  In the absence of such orders and/or the authority for this promotion, there is insufficient evidence to grant the applicant the requested relief.

3.  If the applicant can provide the promotion orders or evidence that his last month of pay was corrected due to a promotion to pay grade E-5, he may request reconsideration of his request.

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)                                         AR20120010796





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ABCMR Record of Proceedings (cont)                                         AR20120010796



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