IN THE CASE OF:
BOARD DATE: 29 April 2014
DOCKET NUMBER: AR20130015267
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 received the promotion to SP5 on 20 January 1971 prior to his discharge.
3. The applicant provides his DD Form 214 and a certificate.
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 21 November 1969 in the rank/grade of private/E-1.
3. He was advanced to private/E-2 on 2 March 1970; private first class/E-3 on 2 May 1970; and to SP4/E-4 on 15 September 1970.
4. He served in Vietnam from 27 June 1970 to 22 June 1971 while assigned to the 57th Aviation Company.
5. The applicant provides a certificate of achievement, dated 20 June 1971, signed by Captain (CPT) TMW, Commander, 57th Aviation Company, wherein it shows he received the certificate in recognition for performing outstanding service and devotion to duty [while assigned to the] 57th Aviation Company, Vietnam. This certificate shows his rank as SP5.
6. His records contain a letter of appreciation, dated 20 June 1971, wherein CPT TMW, in part, stated as the commanding officer of the 57th Aviation Company, he wanted to express his appreciation for a job well done. He stated the applicant was well deserving of the next higher grade and he highly recommended his new commander promote him at the earliest possible date. This letter shows his rank as SP5.
7. He was honorably released from active duty on 23 June 1971 and he was transferred to the U.S. Army Reserve. Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) of his DD Form 214 shows the entries "SP4" and "E-4" respectively.
8. There are no orders in his record that show he was promoted to SP5/E-5.
9. Item 33 (Appointment and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the highest grade he held while serving on active duty was SP4/E-4.
10. 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 at the time the applicant was separated, on 23 June 1971, he held the rank of SP4/E-4. Although his company commander may have been issued him a certificate of achievement on 21 June 1971 and addressed him as SP5, there is no available evidence that shows he was ever actually promoted to that rank prior to his separation. His record is void of orders promoting him to SP5/E-5. Without the promotion instrument - orders - there is an insufficient evidentiary basis for granting the applicant 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) AR20130015267
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ABCMR Record of Proceedings (cont) AR20130015267
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