IN THE CASE OF:	  

		BOARD DATE:	  24 July 2014

		DOCKET NUMBER:  AR20130020607 


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 the following corrections of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge):

* Item 5a (Grade, Rate, or Rank) to show the rank of specialist five (SP5)
* Item 5b (Pay Grade) to show pay grade E-5

2.  The applicant states he was promoted to SP5, effective 8 November 1971, but his DD Form 214 lists his rank as specialist four (SP4)/E-4.  Since the promotion was effective before his release from active duty, he requests that his DD Form 214 be corrected.  

3.  The applicant provides copies of Special Orders (SO) Number 256 and his DD Form 214.

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 (AUS) on 14 February 1969.  He was honorably discharged from the AUS on 18 February 1969 for the purpose of enlistment in the Regular Army (RA).

3.  He enlisted in the RA, in pay grade E-1, on 19 February 1969, for 3 years.  He served as a radio relay carrier attendant.  He was promoted to pay grade E-4 on 9 April 1970.  

4.  His record contains the following:

   a.  A DA Form 2496-1 (Disposition Form), dated 25 August 1971, wherein he was recommended for promotion to sergeant (SGT)/E-5 in his current duty position; the recommendation was approved on 26 August 1971.

   b.  A Promotion List E-5, dated 6 October 1971, wherein his name was listed as being selected for promotion to E-5 on 13 September 1971.

   c.  A DA Form 2496 (Disposition Form), dated 21 October 1971, wherein he requested an early release from active duty on 19 November 1971 for the purpose of attending school; his pay grade is shown as E-4.  

   d.  A memorandum, dated 3 November 1971, approving his early separation on 19 November 1971; the memorandum does not show his pay grade.

5.  He provided a copy of SO Number 256, issued by Headquarters, U.S. Army, Europe and Seventh Army, dated 11 November 1971, promoting him to SP5 with an effective date of 8 November 1971, under the provisions of Army Regulation 600-200 (Personnel General – Enlisted Personnel Management), paragraph      7-15.

6.  His record also contains SO Number 319, issued by Headquarters, U.S. Army Personnel Center, dated 15 November 1971, reassigning him to the transfer point; his rank is listed as SP4.

7.  On 15 November 1971, he was honorably released from active duty and he was transferred to the U.S. Army Reserve (USAR).  He was credited with completing 2 years, 8 months, and 27 days of net active service with no time lost. His DD Form 214 lists in:

* Item 5a – SP4
* Item 5b (Pay Grade) – E-4
* Item 6 (Date of Rank) – 9 April 1970

8.  He was discharged from the USAR on 1 February 1975; the orders list his rank as SP4.

9.  His record is void of any pay records showing he was being paid as a SP5 prior to his release from active duty.

10.  Army Regulation 600-200, in effect at the time, prescribed policies and procedures for the career management of Army enlisted personnel.  The regulation stated in:

   a.  Paragraph 7-15 – the normal requirements for promotion to pay grade E-5.

   b.  Paragraph 7-28 – Soldiers who failed to reenlist or extend to meet the service remaining obligation for promotion must be removed from local recommended lists.

   c.  Paragraph 7-32 - The service remaining obligation was 3 months for promotion to E-5 and waivers would not be granted.  The service remaining obligation would be computed from the first day of the authorized month of promotion.  The promotion authority would promote the Soldier promptly when they received evidence (reenlistment or extension document) that the service remaining obligation had been met.  The effective date of promotion would be the same day.  The promotion authority would remove from the local recommended list the name of any Soldier who was not qualified, or who failed to qualify, for reenlistment or extension of current enlistment by the last day of the month set for promotion.

11.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty.  The regulation states items 5a and 5b would list the active duty grade or rank and pay grade at time of separation and item 6 would list the effective date for the grade shown in items 5a and 5b.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was issued orders promoting him to E-5 with an effective date of 8 November 1971.  Prior to being promoted, he requested to be released from active duty on 19 November 1971 to attend school.  His request was approved and he was released on 15 November 1971.  All documentation pertaining to his release from active duty lists his rank as SP4. 

2.  By regulation, a Soldier who failed to meet the service remaining obligation of 3 months for promotion to E-5 would be removed from the list.  There is no evidence and he provided none to show he was being paid as an E-5 prior to his separation.

3.  There is no evidence and he did not provide sufficient evidence showing he was improperly discharged in pay grade E-4.  Without evidence, it appears his pay grade was E-4 at time of his separation on15 November 1971.  He was also discharged from USAR in pay grade E-4.  In view of the foregoing, there is an insufficient evidentiary basis for granting him 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)                                         AR20130020607



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ABCMR Record of Proceedings (cont)                                         AR20130020607



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