BOARD DATE: 14 August 2014
DOCKET NUMBER: AR20140000080
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, in effect, correction of his DD Form 214 (Report of Separation from Active Duty) for the period ending 15 December 1978 to show his rank/grade as staff sergeant (SSG)/E-6 vice specialist five (SP5)/E-5.
2. The applicant states he was promoted to SSG on 30 August 1978 and he was released from active duty on 15 December 1978. The promotion documents that had been forwarded to the U.S. Army Reserve (USAR) never showed up. The documents are in his official file but he was never promoted to SSG. He served in the Army National Guard (ARNG) after the USAR but no records were ever forwarded to his unit.
3. The applicant provides no additional evidence.
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. Having had prior active service, the applicant enlisted in the Regular Army on 29 December 1975 in the rank of SP5. His record shows he held military occupational specialty (MOS) 51R (Electrician). On 7 June 1977, he was assigned to Company D, 94th Engineer Combat Battalion, in the Federal Republic of Germany.
3. His records contain a Record of Promotion Board Proceedings, issued by Headquarters, 94th Engineer Battalion (Combat) on 28 July 1978. This document shows the applicant appeared before the battalion promotion board on 28 July 1978 for consideration for promotion to SSG.
4. A Recommended List for Promotion of Enlisted Personnel to Grade E-6, issued by Headquarters, 94th Engineer Battalion (Combat) on 28 July 1978, shows the applicant was recommended for promotion to SSG in MOS 51R.
5. He was honorably released from active duty on 15 December 1978 in the rank of SP5 and he was transferred to the USAR. Items 6a (Grade, Rate or Rank) and 6b (Pay Grade) of the DD Form 214 he was issued for this period of service contains the entries SP5 and E-5, respectively.
6. His record does not contain orders showing he was promoted to SSG/E-6 while serving on active duty in the Regular Army.
7. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed the enlisted promotions and reductions function of the military personnel system for RA Soldiers (emphasis added). The regulation stated, in part, promotions to E-5 and E-6 were executed in a semi-centralized manner and would be announced in official orders. Soldiers must appear before a promotion board, be recommended for promotion by the promotion board, and obtain a minimum number of promotion points for promotion prior to being added to the promotion standing list. The promotion work center would maintain the promotion standing list and issue the promotion orders. When monthly promotion point cutoff score announcements were received from Headquarters, Department of the Army, promotion authorities would identify those who were eligible for promotion and the promotion authority would promote the Soldier promptly, but not earlier than the effective month.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms the applicant appeared before a promotion board on 28 July 1978 and was recommended for promotion to E-6.
2. Although he appeared before the battalion's promotion board and was recommended for promotion, his record contains no evidence and he has provided no evidence that shows he was promoted to SSG/E-6 prior to his release from active duty. The DD Form 214 he was issued for the period ending 15 December 1978 correctly shows his rank/grade as SP5/E-5; the rank/grade he held at the time. Therefore, he is not entitled to the requested relief.
3. Additionally, the applicant was recommended for promotion to SSG in the Regular Army. The promotion recommended list on which his name appeared
was only valid during his service in the Regular Army and did not apply during his service in the USAR or the ARNG. 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.
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