IN THE CASE OF:	  

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120011907 


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 as specialist four (SP4)/E-4 instead of private first class (PFC)/E-3.  

2.  The applicant states his records list the wrong rank/grade; he was promoted to SP4/E-4 in 1966.  

3.  The applicant provides:

* Congressional correspondence
* Special Orders Number 18, dated 23 January 1966 (promotion to E-4)
* Honorable Discharge Certificate
* DD Form 214
* DD Form 47 (Record of Induction)
* DA Form 1577 (Authorization for Issuance of Awards)
* DA Form 20 (Enlisted Qualification Record)
* Certificate of Award as a Nonpareil
* Letter of Appreciation
* State of New York Medal for Merit
* State of New York Conspicuous Service Star
* Photograph
* Letter of reenlistment
* Ration Card


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 November 1964.  He completed basic combat training at Fort Dix, NJ. 

3.  While at Fort Dix, Unit Orders Number 5, issued by Company L, 4th Training Brigade, Fort Dix, NJ, ordered his promotion to PFC/E-3 effective 11 February 1965.  

4.  He completed advanced individual training and he was awarded military occupational specialty (MOS) 51M (Firefighter). 

5.  Following MOS training and an assignment to Fort Leonard Wood, MO, he served in Vietnam from on or about 11 September 1965 to 10 September 1966.  He was assigned to the 527th Engineer Detachment, Camp Radcliff, An Khe, Vietnam.  

6.  On 23 January 1966, Headquarters, An Khe Direct Support/General Support Battalion, U.S. Army Support Command, Qui Nhon, published Special Orders Number 18 promoting him to SP4/E-4 effective 23 January 1966.

7.  On 15 July 1966, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* Disrespecting a superior noncommissioned officer 
* Disobeying a lawful order from a superior noncommissioned officer

8.  His punishment consisted of a reduction to PFC/E-3, 14 days of restriction and extra duty, and a forfeiture of $25.00 pay.  He elected not to appeal his punishment.  
9.  Item 33 (Appointments and Reductions) of his DA Form 20 shows he was reduced from E-4 to E-3 effective 15 July 1966 in accordance with the Article 15 he received.  It does not show he was promoted back to SP4 between the date of reduction and the date of separation. 

10.  On 7 September 1966, Headquarters, U.S. Army Personnel Center, Oakland, CA published Special Orders Number 250 ordering his release from active duty effective 7 September 1966.  The orders listed his grade as "PFC." 

11.  He was honorably released from active duty on 7 September 1966 and he was transferred to the U.S. Army Reserve to complete his remaining obligation.  His DD Form 214 shows in:

* Items 3a (Grade, Rate or Rank) - PFC/E-3 (P (Permanent))
* Item 3b (Date of Rank) - 15 July 1966

12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that item 3a and 3b will show the active duty rank/pay grade and the date of rank at the time of the Soldier's separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show his rank as SP4/E-4. 

2.  The evidence of record shows the applicant accepted NJP under the provisions of Article 15 of the UCMJ that led to his reduction to PFC/E-3 on 15 July 1966.  There is no evidence that he was promoted or appointed back to SP4/E-4 between the date of reduction and the date of separation from active duty.  

3.  The governing regulation provides that the DD Form 214 will show the active duty rank and pay grade at the time of the Soldier's separation.  The applicant's DD Form 214 correctly lists his rank as PFC/E-3.  There is neither an error nor an injustice.

4.  The applicant's post-discharge achievements/accomplishments in the form of state certificates are noteworthy.  However, post-service achievements and/or the passage of time do not invalidate his reduction by a competent authority on 15 July 1966.  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)                                         AR20120011907



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ABCMR Record of Proceedings (cont)                                         AR20120011907



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