BOARD DATE: 14 October 2014
DOCKET NUMBER: AR20140003279
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/pay grade as sergeant (SGT)/E-5.
2. The applicant states he would like to set the record straight. The noncommissioned officer (NCO) present at the date of his discharge said he could not find a copy of his promotion orders.
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. The applicant was inducted into the Army of the United States on 16 February 1970.
3. Special Orders Number 264, issued by Headquarters, 3d Infantry Division, dated 17 October 1970, show he was promoted to the rank/pay grade of specialist four (SP4)/E-4 on 15 September 1970.
4. The evidence shows the applicant served in the Republic of Vietnam from
13 March 1971 to 13 January 1972.
5. His DA Form 137 (Installation Clearance Record), which was initiated upon his departure from the Republic of Vietnam, lists his rank as a SP4.
6. On 14 January 1972, he underwent a separation physical at Fort Lewis, WA. His Standard Form 88 (Report of Medical Examination) lists his rank as SGT.
7. Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the entry SP4/E-4 as the highest rank/grade he held.
8. His records contain Special Orders Number 14, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, dated 14 January 1972, which show he was relieved from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) effective 15 January 1972. His rank is reflected as SGT on these orders.
9. On 14 January 1972, the applicant was honorably released from active duty as an overseas returnee and transferred to the USAR Control Group (Annual Training). The DD Form 214 he was issued lists his rank/grade as SP4/E-4 and his date of rank as 15 September 1970.
10. His records contain Letter Orders Number 01-1009962, issued by the Reserve Components Personnel and Administration Center, dated 29 January 1976, which show he was honorably discharged from the Standby Reserve on 1 February 1976. His rank is reflected as SP4 on these orders.
11. Army Regulation 600-200 (Enlisted Personnel Management System), then in effect, stated that company, troop, battery, and separate detachment commanders may appoint qualified individuals as acting corporals/E-4 and acting SGT/E-5 to serve in position vacancies existing in their units, including those
resulting from the temporary absence of an assigned NCO. Acting NCO's were not entitled to pay and allowances of such higher grades and service as an acting NCO was not to be credited as time in a higher grade for promotion or date of rank purposes. Acting NCO status will be terminated:
* at the discretion of the unit commander who made the appointment
* upon reassignment to another unit
* upon assignment of a regularly-promoted NCO to the position
* when casual groups reach their destination
12. Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214. This regulation stated that the active duty grade or rank and pay grade at the time of separation was entered in item 5a and item 5b of the DD Form 214. The effective date of the pay grade was entered in item 6.
DISCUSSION AND CONCLUSIONS:
1. The available evidence is insufficient to correct the applicant's DD Form 214 to show he was promoted to or released from active duty in the rank of SGT/E-5.
2. The applicant's record contained a separation order which listed his rank/grade as SGT/E-5; however, in the absence of orders promoting the applicant to the rank/grade of SGT/E-5, it is presumed he was in an acting NCO status and the status was subsequently terminated.
3. Unfortunately, in the absence of a promotion order confirming he was promoted to the rank/grade of SGT/E-5, the entry regarding the applicant's rank/grade listed on his DD Form 214 is presumed to be correct.
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) AR20140003279
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