IN THE CASE OF:	  

		BOARD DATE:	  3 December 2014

		DOCKET NUMBER:  AR20140006084 


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/grade as corporal (CPL)/E-4 instead of private first class (PFC)/E-3. 

2.  The applicant states he was promoted to CPL/E-4 when he was in Vietnam with the 2nd Battalion, 28th Division, out of Fort Sill, OK. 

3.  The applicant provides his DD Form 214 and a Disposition Form (DF) regarding clearing the Central Issue Facility. 

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 on 20 April 1971 in the rank/pay grade of private/E-1.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13A (Field Artillery).  

3.  On 24 June 1971, at Fort Knox, KY, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for theft. 

4.  He was advanced to private/E-2 on 4 September 1971.  

5.  On 10 September 1971, at Fort Sill, OK, he accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave.  His punishment consisted of a reduction to pay grade E-1, a forfeiture of pay, and restriction. 

6.  He was again advanced to private/E-2 on 1 November 1971.  He served in Germany (U.S. Army Europe (USAREUR)) from on or about 17 November 1971 to 12 May 1973.  He was assigned to:

* 2nd Battalion, 28th Artillery, from 20 November 1971 to 13 July 1972
* 3rd Battalion, 37th Artillery, from 14 July 1972 to 12 May 1973

7.  SO Number 40 (as amended by SO Number 28), issued by Headquarters, VII Corps Support Command (Germany), advanced him to PFC/E-3, effective 21 January 1972. 

8.  On 18 April 1972, while assigned to the 2nd Battalion, 28th Artillery, he accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave.  His punishment consisted of a reduction to pay grade E-2 (suspended), restriction, and extra duty.  The suspension was later vacated and his reduction was ordered executed. 

9.  SO Number 290, issued by Headquarters, VII Corps Support Command (Germany), dated 16 October 1972, advanced him to PFC/E-3, effective 11 September 1972, while assigned to Battery A, 3rd Battalion, 37th Artillery. 

10.  On 14 November 1972, he again accepted NJP under the provisions of Article 15 of the UCMJ for dereliction of duty.  His punishment consisted of a forfeiture of pay and a suspended reduction to pay grade E-2. 

11.  He was transferred out of Germany in a patient status on 13 May 1973 and he was assigned to the Medical Holding Company, Fort Bragg, NC.  
12.  There are no special orders in the applicant’s record that show he was advanced to specialist four (SP4)/E-4 or to CPL/E-4. 

13.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he held was that of PFC/E-3. 

14.  SO Number 100, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, NC, ordered his separation effective 25 May 1973, in the rank of PFC/E-3. 

15.  On 25 May 1973, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  Items 5a and 5b of the DD Form 214 he was issued show the entries "PFC" and "E-3" respectively.  Additionally, item 6 (Date of Rank) shows the entry "11 SEP 72 [September 1972]."

16.  Letter Orders 03-1035083, issued by Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, on 23 May 1977, honorably discharged him from the USAR, effective 19 April 1977, after having completed his military service obligation.  The orders listed his rank as PFC. 

17.  The applicant provides a DF, issued by the commanding officer, Medical Holding Company, dated 16 May 1973, showing he was medically evacuated from Germany and his unit turned in his organizational equipment.  The DF lists his pay grade as E-4. 

18.  His records, however, contain a document signed by the same commanding officer of the Medical Holding Company, on 24 May 1973, certifying that the applicant held the rank of PFC, had arrived at Womack Army Hospital from Germany on 13 May 1973 without any military clothing.  

19.  On 28 March 1975, an official at the Department of the Army Congressional Inquiry Division responded to a Member of Congress regarding the applicant's eligibility for reentering the Army.  The official stated:

* a review of the applicant's records disclosed his failure to meet the grade and service criteria was due to reduction as a result of NJP
* the applicant failed to disclose his reduction and other information concerning NJP on three separate occasions
* the applicant's conduct and efficiency ratings were unsatisfactory and his records was not exemplary
* his record was not considered sufficiently meritorious for reentry and as such, his application for enlistment was disapproved 
20.  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, in part, that the promotion of enlisted personnel, appointments, grade reductions, and grade restoration were announced in orders.  

21.  Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It states, in part, that items 5a and 5b will show the active duty rank and pay grade at the time of the Soldier's separation; the rank is taken from the Soldier’s promotion/reduction orders; and item 6 shows the date of rank.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that at the time of his separation, on 25 May 1973, the applicant held the rank/pay grade of PFC/E-3.  His record is void of orders advancing him to SP4/E-4 or to CPL/E-4, and item 33 of his DA Form 20 does not show an entry for advancement to pay grade E-4. 

2.  Additionally, there is no evidence in the applicant's records that shows he served in Vietnam.  The available evidence shows he was stationed in Germany and was medically evacuated to Fort Bragg, NC.  The document, dated 16 May 1973, he provides regarding clearing the Central Issue Facility (it reflects his rank as SP4) is contradicted by another document, dated 24 May 1973, and authenticated by the very same commander, showing his rank as PFC. 

3.  Promotions/advancements of enlisted personnel were announced in orders.  In the absence of such orders and/or the authority for this promotion, there is insufficient evidence to grant the applicant 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)                                         AR20140006084



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ABCMR Record of Proceedings (cont)                                         AR20140006084



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