IN THE CASE OF:
BOARD DATE: 17 June 2014
DOCKET NUMBER: AR20130017258
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 promotion to staff sergeant (SSG)/E-6.
2. The applicant states he was placed on the promotion list before his separation. The date eligible to return from overseas (DEROS) was also before his separation. He was never awarded his E-6.
3. The applicant provides:
* Congressional correspondence
* Enlisted Promotion List
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Discharge orders
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 enlisted in the Regular Army (RA) on 6 April 1966 and he held military occupational specialty (MOS) 71B (Clerk Typist). He was also awarded a secondary MOS of 76K (General Supply Specialist).
3. He was appointed to the permanent (P) rank/grade of private first class/E-3 on 5 November 1966 and temporary (T) rank/grade of specialist four (SP4)/E-4 on 28 February 1967.
4. He was honorably discharged in the rank/grade of SP4/E-4 (T) on 9 August 1967 for the purpose of immediate reenlistment. He was issued a DD Form 214 that captured this period of active duty.
5. He reenlisted in the RA on 10 August 1967. He was trained in and held MOS 44C (Welder) and he served in Vietnam from/to:
* 2 July 1968 to 10 February 1970; he was assigned to the 507th and 531st Engineer Detachments
* 31 August 1970 to 3 August 1971; he was assigned to 160th Heavy Equipment Maintenance (HEM) Company (General Support (GS))
6. On 30 September 1968, Headquarters, U.S. Army Engineer Construction Agency, Vietnam, published Special Orders Number 164 appointing him to the temporary (T) rank/grade of specialist five (SP5)/E-5, effective 30 September 1968.
7. On 27 April 1971, Headquarters, 86th Maintenance Battalion (GS) published an Enlisted Promotion List that constituted a current list for appointment to the grade of E-6 of enlisted individuals assigned to the units within this command as of 27 April 1971. The applicant's name is listed as follows:
* Unit: 160th HEM Company (GS)
* MOS: 44Z4O
* [Promotion] Points: 608.3
* Date Selected: 19 November 1970
* DEROS: 2 August 1971
8. His DA Form 20 (Enlisted Qualification Record) listed his highest rank/grade attained as SP5/E-5, effective 30 September 1968, by authority of Special Orders Number 164, issued by Headquarters, U.S. Army Engineer Construction Agency.
9. He departed Vietnam on 30 July 1971. His DA Form 137 (Installation Clearance Record) listed his rank/grade as SP5/E-5. He proceeded to Fort Lewis, WA for separation outprocessing.
10. On 4 August 1971, Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, published Special Orders Number 216 releasing him from active duty effective 4 August 1971. The orders listed his rank as SP5.
11. He was honorably released from active duty on 4 August 1971 and he was transferred to the U.S. Army Reserve Control Group (Standby Reserve) to complete his Reserve obligation. His DD Form 214 shows in:
* items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) the entries "SP5" and "E-5"
* item 6 (Date of Rank), the entry "30 Sep 68" [30 September 1968]
12. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. This regulation states items 5a and 5b show the rank/grade in which a member was serving at the time of separation with an indication of permanent or temporary; for example, "MSG (T) [master sergeant, temporary], SGT (P), etc." and item 6 shows the date of rank for the grade shown in item 5a.
13. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel. Chapter 7 contained Army-wide promotion policy and procedures. It stated:
a. Paragraph 7-3 states field grade commanders of any organization which is authorized a commander in the grade of lieutenant colonel or higher may promote assigned personnel to pay grades E-5 and E-6.
b. Paragraph 7-1 states individuals recommended for promotion to E-6 require a personal appearance before a promotion selection board. The minimum grade and service requirement for promotion to E-6 are 10 months time in grade and 84 months time in service (waived to 60 months).
c. Chapter 7 states the promotion instrument is the promotion order.
DISCUSSION AND CONCLUSIONS:
1. The applicant confuses a recommendation for promotion with a firm promotion to the higher grade. The available evidence shows the applicant was recommended for promotion to SSG/E-6 and his name was added to the battalion Promotion Standing List. However, there is no evidence he met the cut-off scores for his MOS prior to his separation.
2. Promotion to E-6 was not automatic upon being recommended for promotion and placed on a promotion list. Furthermore, the DEROS date is not related to the promotion issue. Absent the publication of the promotion instrument - a promotion order - there is insufficient evidence to grant him the requested 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 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) AR20130017258
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130017258
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