IN THE CASE OF:	 

		BOARD DATE:	  3 April 2014

		DOCKET NUMBER:  AR20130014040 


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 and pay grade as sergeant (E-5) instead of specialist four (E-4).

2.  The applicant states:

* he has enclosed the paperwork that the National Personnel Records Center (NPRC) sent him with his last request
* it clearly shows he was recommended for promotion and it shows the Board Member Appraisal worksheet approval
* he was promoted in Vietnam, but when he was discharged it did not include his promotion
* he did not realize that the promotion was not on his discharge document at that time
* he received a plaque when he was discharged and he has received a photograph of the plaque

3.  The applicant provides:

* Recommended List for Promotion of Enlisted Personnel, dated 15 April 1970
* Board Member Appraisal Worksheet
* DD Form 214, dated 29 June 1970
* Exploiters Plaque Xeroxed Photograph
* Exploiters Plaque Xeroxed Photograph, which he contends shows him and a friend who received the same plaque

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 on 13 November 1968.  He completed training as a film laboratory specialist.  He was promoted to pay grade E-2 on 13 March 1969, to pay grade E-3 on 15 May 1969, and to pay grade E-4 on 19 September 1969.

3.  On 15 April 1970, the applicant was notified that he had been selected for promotion to sergeant (E-5) in the military occupational specialty code (MOSC) 76L4W.  The notification states:

* the individuals would be promoted in the order listed upon receipt of the promotion allocations by that headquarters
* the individual promoted from the list must be promoted into a position vacancy in MOS for which recommended
* promotion without regard to position vacancy is only authorized when special allocations are received

4.  On 21 April 1970, Special Orders Number 50 were published appointing the applicant as Alternate Battalion Water Conservation Noncommissioned Officer in an E-5 position for an indefinite term.  The standard name line shows his rank as SGT and his MOS as 76L2O.  The appointment was effective 21 April 1970.

5.  On 15 June 1970, the applicant was notified that he had been selected for promotion to pay grade E-5 MOSC 76L4W.  The notification reiterates the information he received in his 15 April 1970 notification, stating the listed individuals would be promoted in the order listed upon receipt of promotion allocations.  Six individuals with recommended promotion MOS 76W4L were listed with higher promotion points than the applicant.

6.  The applicant was honorably released from active duty (REFRAD) on 29 June 1970, as an overseas returnee.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement).  Item 5a (Grade, Rate Or Rank) on his DD Form 214 shows SP4 as his rank and pay grade.

7.  Army Regulation 600-200 (Enlisted Personnel Management System), as then in effect, prescribed policies and procedures for career management of Army enlisted personnel.  Paragraph 7-5 provided that an individual would not be appointed to a higher grade when:

* carried as absent without leave or desertion, absent or present in confinement, or sick not in line of duty
* serving a court-martial sentence
* under court-martial charges or under discharge proceedings
* the subject of a flagging action
* awaiting or undergoing reclassification for inefficiency or disciplinary reasons
* undergoing nonjudicial punishment

8.  The legal "Doctrine of Laches" bars a claimant from receiving relief where the claimant's delay in pursuing the claim has operated to the prejudice of the opposing party.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  The available evidence shows that the applicant was notified on 15 April 1970 of his selection for promotion to sergeant, pay grade E-5 and his subsequent assignment to an E-5 position vacancy on 21 April 1970.  He was again notified on 15 June 1970 of his selection for this promotion.  However, he was honorably released from active duty just 14 days later.

3.  It is possible, but not likely, that the applicant became nonpromotable in the 14 days between the 15 June 1970 notification of selection for promotion and his 29 June 1970 release from active duty.  However, six individuals in his MOS with higher promotion points than his were on the recommended list.  It is possible, but very unlikely, that seven allocations for promotion would have been received in those two weeks.
4.  The 21 April 1970 special orders appointing the applicant in an E-5 position have been considered.  However, considering that the standard name line on those orders listed his MOS as 76L2O (and not 76L4O), it appears he may have been appointed an acting sergeant.

5.  It has been more than 43 years since the applicant was recommended for appointment to sergeant, pay grade E-5.  The available records are inadequate to confirm or deny the applicant's contention that he was actually promoted to sergeant prior to his discharge and maintained that rank until his separation.  Regrettably, due to the passage of time, pertinent information has been lost or destroyed; therefore, favorable consideration of the applicant's request is barred by the doctrine of laches.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130014040



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ABCMR Record of Proceedings (cont)                                         AR20130014040



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