IN THE CASE OF:  

		BOARD DATE:  9 September 2014	  

		DOCKET NUMBER:  AR20140000933 


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 he was separated in the rank/grade of corporal (CPL)/E-4 vice specialist four (SP4)/E-4. 

2.  The applicant states:

* he was promised this promotion while he was recovering from injuries suffered in battle
* he believed his correct rank was reflected on his DD Form 214 
* he earned the rank of CPL and he would like that reflected on his headstone; he believes he deserves that distinction
* he did everything his country asked and earned that rank with blood, sweat, tears, and in the classroom

3.  The applicant provides his DD Form 214 and a military school diploma. 

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 complete military records are not available for review with this case.  However, he provided sufficient documents necessary to reconstruct the record, in order for the Board to conduct a fair and impartial review of this case.

3.  The DD Form 214 he provided shows he was inducted into the Army of the United States on 18 February 1966.  At the time of his release from active duty, he held military occupational specialty 11B (Light Weapons Infantryman). 

4.  His DD Form 214 shows he served in Vietnam for a period of 1 year,            11 months, and 9 days.

5.  On 19 February 1968, he was honorably released from active duty.  His DD Form 214 shows he completed 2 years and 3 days of creditable active service and he had other service.  This form also shows in:

	a.  items 5a (Grade, Rate, or Rank), 5b (Pay Grade), and 6 (Date of Rank), the entries "SP4 (T)," "E-4," and "5 Feb 67" [5 February 1967];

	b.  item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) the:

* National Defense Service Medal
* Combat Infantryman Badge
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Vietnam Service Medal
* Vietnam Campaign Medal
* Good Conduct Medal
* Purple Heart

	c.  item 30 (Remarks) the entry "Item 5a: PFC (P) (Aptd) 18 Aug 66" indicating the permanent (P) grade of private first class (PFC) was the highest permanent grade he held and the date of his appointment into this grade was 18 August 1966.

6.  He provides a certificate, issued by 3rd Brigade Task Force, 25th Infantry Division and shows he completed the 3rd Brigade Task Force Noncommissioned Officer Preparatory School at Pleiku, Vietnam on 17 December 1966.  His rank is listed as PFC.
7.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.

	a.  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], SP4 (P), etc."

	b.  Item 6 shows the date of rank for the grade shown in item 5a.

		(1)  If the date of rank is different from the date of appointment, enter the date of appointment in item 30 (Remarks).

		(2)  If the grade at the time of separation is not permanent, the permanent grade, date of appointment, and date of rank, if different from date of appointment will be entered in item 30.

	c.  Item 30 is used to complete entries too long for their respective blocks and/or as a cross-reference.  An entry is made in item 30 with respect to the grade as follows: 

		(1)  If the date of appointment is different from the date shown in item 6, enter date of appointment as follows:  "Item 6 – Date of Appointment 15 August 1955."

		(2)  If the grade shown in item 5 is not permanent, enter the permanent grade, date of appointment, and date of rank if different from date of appointment, as follows:  "Item 5 – MSG (P) (E-8), Appointed 1 August 1988" or Item 5 – SP5 (T), Appointed 13 September 1958, Date of Rank 1 August 1958."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service records are not available for review with this case.  The available evidence shows he served in an active duty status from 18 February 1966 to 19 February 1968.  The policy in effect at the time provided for entering the rank a member held on the date of separation in Item 5 and the highest rank a member held in Item 30 of the DD Form 214.

2.  The applicant's DD Form 214 shows he held the permanent rank of PFC at the time of separation and the temporary rank of SP4/E-4.  He contends that he was promised a promotion to CPL.  Unfortunately, there is no evidence in his records and he provides none of such promise.  It is possible he performed the duties of a CPL during the stated period; however, in the absence of official orders or other documentary evidence confirming appointment or promotion to CPL, there is insufficient evidence to correct his DD Form 214 to show the rank he held on 19 February 1968 was CPL. 

3.  Therefore, in the absence of evidence to the contrary, it appears his rank was properly entered in his separation document in accordance with the regulatory policy in effect at the time.  There is insufficient evidence to grant 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)                                         AR20140000933



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ABCMR Record of Proceedings (cont)                                         AR20140000933



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