IN THE CASE OF:	   

		BOARD DATE:	  25 April 2013

		DOCKET NUMBER:  AR20120017768 


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 "sergeant (SGT)/E-5" vice "private first class (PFC)/E-3."

2.  The applicant states Elvis Presley (SGT Presley) was promoted to SGT/E-5 as a jeep driver while he (the applicant) was a PFC car commander with an Expert Infantryman Badge.

3.  The applicant provides:

* self-authored statement
* his DD Form 214
* Special Orders (SO) Number 169, dated 11 September 1959
* SGT Presley's DD Form 214
* five photographs 
* excerpt/information, Combat Infantryman Badge

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 was inducted into the Army of the United States on 4 March 1958.  He completed basic combat and advanced individual training at Fort Hood, TX and was awarded military occupational specialty (MOS) 133.10 (Armor Intelligence Specialist).

3.  His DA Form 24 (Service Record) shows he was assigned to Germany from 1 October 1958 to 14 February 1960.  He served with Headquarters and Headquarters Company, 2nd Armored Reconnaissance Battalion (ARB), 46th Infantry Regiment, Germany, from 2 October 1958 to 14 February 1960.  

4.  His DA Form 24 also shows SO Number 219, issued by Headquarters, 2nd ARB, 46th Infantry Regiment, Germany, on 11 November 1958 promoted him to the temporary (T) rank/grade of PFC/E-3 and he received the following awards:

* SO Number 18, issued by Headquarters, 2nd ARB, 46th Infantry Regiment, Germany, on 22 January 1958 awarded him the Expert Marksmanship Qualification Badge with Rifle Bar 
* SO Number 169, issued by Headquarters, 2nd ARB, 46th Infantry Regiment, Germany, on 11 September 1959 awarded him the Expert Infantryman Badge
* General Orders Number 2, issued by Headquarters, 2nd ARB, 46th Infantry Regiment, Germany, on 1 February 1960 awarded him the Army Good Conduct Medal

5.  His DA Form 20 (Enlisted Qualification Record) shows he held the following duty positions while assigned to Headquarters and Headquarters Company, 2nd ARB, 46th Infantry Regiment, Germany from:

* 1 October 1958 to 25 March 1959, trumpet player (5 months, 25 days)
* 26 March 1959 to 14 November 1959, scout observer (7 months, 20 days)
* 15 November 1959 to 14 February 1960, assistant squad leader 
(3 months)

6.  He was honorably released from active duty on 26 February 1960.  His DD Form 214 lists his rank/grade as PFC (T) and his date of rank (DOR) as 11 November 1958.  He completed 1 year, 11 months, and 23 days of net active service; 1 year, 5 months, and 2 days of which was foreign service.  Additionally, he was awarded or authorized the:

* Army Good Conduct Medal
* Expert Infantryman Badge
* Expert Marksmanship Qualification Badge with Rifle Bar

7.  The applicant provided Elvis Presley's (SGT Presley) DD Form 214 which shows SGT Presley was drafted into the Army of the United States on 24 March 1958.  At the time of his release from active duty his rank/grade was listed as SGT/E-5 and his DOR as 11 February 1960.  This form also shows he was awarded the Army Good Conduct Medal.

8.  He provided several photographs three of which show a group of Soldiers and military vehicles, one showing himself, and another of SGT Presley.

9.  He provided a self-authored statement wherein he stated:

	a.  He and SGT Presley served in the U.S. Army during the same time period at Fort Hood, TX and Germany.  They were on the same train from Fort Hood, TX to the Brooklyn Army Terminal in New York, NY, on the USS Randall to Bremerhaven, Germany, and held the same MOS 133.10 (applicant) and 133.60 (SGT Presley); both MOS codes are Armor Intelligence Specialists.

	b.  SGT Presley's DD Form 214 indicates that he did not qualify with the 
M-1 Rifle.  Additionally, he states he had a better service record than SGT Presley.

	c.  SGT Presley was a jeep driver for a high-ranking officer at Ray Barracks the entire time he was stationed in Germany.  His DD Form 214 indicates he was promoted to SGT/E-5 on 11 February 1960 and discharged on 5 March 1960.  He was only a SGT for 22 days.

	d.  He (applicant) was promoted to the rank of PFC/E-3 (T) on 11 November 1958 and did not get promoted to specialist four (SP4)/E-4 or SGT/E-5.  His DD Form 214 shows he received the Army Good Conduct Medal, Expert Infantryman Badge, and Expert Marksmanship Qualification Badge with Rifle Bar.  He was told he would receive a promotion if he passed the Expert Infantryman exam.  However, since his ranking cadre did not take the exam themselves, they never put him in for a promotion.  The orders awarding him the Expert Infantryman Badge show he was the only PFC/E-3 in his unit to pass the exam.  After he received his Expert Infantryman Badge on 11 September 1959, he became the car commander of Jeep 224, 2nd Section Scout Platoon, 46th Infantry, 3rd Armored Division.  His jeep driver was a SP4, he was a PFC, and his machine gunner was a private.  He was the only PFC car commander in unit. 

	e.  How did SGT Presley get promoted?  He (applicant) was never promoted even though he received the Army Good Conduct Medal, Expert Infantryman Badge, and Expert Marksmanship Qualification Badge with Rifle Bar.  The U.S. Army owes him an explanation of this injustice.

10.  Army Regulation 624-200 (Appointment and Reduction of Enlisted Personnel), in effect at the time, stated for enlisted personnel to grades E-3 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders.  It stated local appointment authorities were authorized to make temporary appointments of qualified personnel to pay grades above E-3 against local pay grade vacancies, subject to major command ceilings and allocation of quotas.

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.

12.  The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been promoted to SGT because he had a better service record than SGT Presley.

2.  The ABCMR considers cases based on the evidence in an applicant's service record and the evidence they provide to support and strengthen the case.  The ABCMR does not make decisions based on the service records of other Soldiers. Elvis Presley's promotion to SGT has no bearing on the applicant's promotion or lack thereof.  Nevertheless, the difference in the two cases could have been for any number of reasons, including that the applicant’s unit never had vacancies into which he could have been promoted.

3.  During his period of service the promotions of enlisted personnel between the grades E-3 through E-9 were announced in routine orders.  Since his records are void of such orders and he has not provided any, there is insufficient evidence to grant relief in this case.  

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 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)                                         AR20120017768



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120017768



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1