IN THE CASE OF:
BOARD DATE: 16 January 2014
DOCKET NUMBER: AR20130009200
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 five (SP5)/E-5 vice specialist four (SP4)/E-4.
2. The applicant states he has a DA Form 2496-1 (Disposition Form) indicating his promotion to E-5. He was recommended for promotion to E-5 but he was never told if he was actually promoted. He feels he earned the promotion.
3. The applicant provides a DA Form 2496-1.
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 enlisted in the Regular Army on 11 June 1970 and he held military occupational specialty 76T (Aircraft Repair Parts Specialist). Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he attained the rank or SP4 on 3 November 1970.
3. He served in Vietnam from 15 December 1970 to 3 December 1971 while assigned to the 79th Transportation Company, 14th Transportation Battalion.
4. The applicant provides a DA Form 2496-1, dated 7 September 1971, wherein it shows the Commander, 79th Transportation Company, recommended him for promotion to the grade of E-5 with a 6-month waiver for time in service.
5. This DA Form 2496-1 shows the unit personnel officer endorsed the form and stated the applicant had been found administratively eligible for promotion and the requested waiver had been approved. This endorsement shows it was addressed to the President, 14th Transportation Battalion Selection Board.
6. His record is void of any evidence that shows he appeared before an E-5 promotion board and was recommended for promotion to SP5/E-5 by a majority of the board members.
7. Special Orders Number 183, dated 25 January 1972, issued by Headquarters, U.S. Army School/Training Center, Fort McClellan, AL, released him from active duty effective 1 February 1972. His rank is shown as SP4.
8. He was honorably released from active duty on 1 February 1972 and he was transferred to the Army National Guard, 867th Engineer Company, Omaha, NE.
9. Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) of the DD Form 214 he was issued show the entries "SP4" and "E-4" respectively.
10. There are no orders in the applicant's record that show he was promoted to SP5/E-5.
11. Army Regulation 600-200 (Enlisted Personnel Management System), 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. Field grade commanders in the rank of lieutenant colonel or higher could promote to E-5.
DISCUSSION AND CONCLUSIONS:
The evidence of record shows that at the time the applicant was separated, on 1 February 1972, he held the rank of SP4/E-4. Although he may have been recommended for promotion, there is no evidence that shows he appeared before an E-5 promotion board, was recommended for promotion by the board, and his record is void of orders promoting him to SP5/E-5. There is no evidence and he has not provided any evidence that shows he was promoted to SP5/E-5 prior to separation. Therefore, 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) AR20130009200
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ABCMR Record of Proceedings (cont) AR20130009200
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