IN THE CASE OF:  	  

		BOARD DATE:  31 March 2015	  

		DOCKET NUMBER:  AR20140012600 


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 records to show he was placed on the temporary disability retired list (TDRL) in 1970 in the rank/grade of staff sergeant (SSG)/E-6 vice sergeant (SGT)/E-5. 

2.  The applicant states:

	a.  On 18 August 1970, he was on a combat mission to locate and secure a hill in Vietnam when he stepped on a landmine and he was severally injured.  He was hospitalized for 8 months, 6 of which he spent in bed.  During his hospitalization, he inquired with the ward noncommissioned officer about getting promoted to pay grade E-6.  His response was the Army does not promote Soldiers during their hospital stay and recuperation.  

	b.  On 26 March 2014, he read an obituary of Captain (CPT) EA who was injured when he was a first lieutenant (1LT) and his recovery lasted a year, during which he was promoted to CPT.  The applicant believes his case is similar to that of the CPT.  He does not believe he should have been denied promotion because of the injury he sustained during a combat mission.  He believes he should have been promoted to pay grade E-6 retroactive to 1970.  

3.  The applicant provides

* DD Form 214
* Three sets of orders for the Purple Heart 
* CPT EA’s obituary
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 was inducted into the Army of the United States on 29 January 1969 and he held military occupational specialty 11B (Light Weapons Infantryman).  

3.  Special Orders (SO) Number 166, issued by The Candidate Brigade (Provisional), Fort Benning, GA, appointed him to the temporary rank/grade of corporal (CPL)/E-4 (T), effective 14 July 1969. 

4.  SO Number 244, issued by Headquarters, The Candidate Brigade (Provisional), Fort Benning, GA, on 6 October 1969, appointed him to the rank/grade of SGT/E-5 (T), effective 6 October 1969. 

5.  He served in Vietnam from 7 February to 12 September 1970.  He was assigned to Company B, 3rd Battalion, 219th Infantry, 196th Infantry Brigade.  He was injured in Vietnam on three separate occasions and he was awarded the Purple Heart for all three incidents: 

* General Orders (GO) Number 74, issued by Headquarters, 27th Surgical Hospital, on 6 June 1970, awarded him the Purple Heart for wounds received in action on 4 June 1970
* GO Number 8489, issued by Headquarters, Americal Division, on 17 July 1970, awarded him the Purple Heart for wounds received in action on 
15 July 1970
* GO Number 186, issued by Headquarters, 91st Evacuation Hospital on 19 August 1970, awarded him the Purple Heart (2nd Oak Leaf Cluster) for wounds received in action on 18 August 1970


6.  He was evacuated from Vietnam through Camp Zama, Japan, to the U.S. Army Hospital, Fort Polk, LA, in September 1970.  Prior to his evacuation, specifically on 4 September 1970, a Statement of Promotion Status Information of Medical Evacuee was prepared for the applicant.  This document indicates he was ineligible for promotion under the provisions of paragraph 7-21 and 7-15 of Army Regulation 600-200 (Enlisted Personnel Management System).  

7.  After treatment, hospitalization, and therapy, a physical evaluation board (PEB) convened on 20 April 1971 and found him unfit for duty due to multiple physical injuries.  The PEB rated his disabilities and recommended his placement on the TDRL.  He concurred. 

8.  Letter Orders Number D-5-967, issued by Office of the Adjutant General on 27 May 1971, ordered his retirement in the rank/grade of SGT/E-5 and placement on the TDRL with a combined rating of 90 percent, effective 7 June 1971.

9.  He retired on 7 June 1971 and he was placed on the TDRL on 8 June 1971.  His DD Form 214 shows he completed 2 years, 4 months, and 9 days of active service.  It also shows in:

* Items 5a (Grade, Rate or Rank) and 5b (Pay Grade), SGT and E-5
* Item 6 (Date of Rank), 6 October 1969 

10.  On 1 June 1972, a TDRL PEB convened and determined the applicant was still unfit and recommended his permanent retirement from the Army.  

11.  Letter Orders Number D-7-916, issued by The Office of the Adjutant General on 28 July 1972, ordered the applicant removed from the TDRL on 31 August 1972 and permanently retired him in the rank/grade of SGT/E-5 effective 
1 September 1972.  He was assigned a combined disability rating of 80 percent.

12.  He provides an obituary from a newspaper, dated 26 March 2014, regarding a CPT who fought and was injured during World War II.  He remained hospitalized for more than a year during which time he was advanced to CPT.  

13.  Army Regulation 600-200 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 pertinent part, that the promotion of enlisted personnel to pay grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.  Chapter 7 of the regulation stated: 
	a.   Hospitalized personnel. Commanders of medical facilities may promote hospitalized personnel to pay grades E-6 and below. 

	b.  Medical facility commanders may consider patients for promotion under the normal promotion criteria of this chapter, together with the following guidance: (1) Individuals with recommended-list status for promotion to pay grade E-5 or E-6 resulting from selection by a local board prior to hospitalization may be promoted if their total promotion point scores are the same as or higher than the scores for the MOS's as announced by Headquarters, Department of the Army.  Correspondence reflecting the individual's recommended-list status will be forwarded to the medical facility commander with the individual's personnel record by the losing commander; (2) Individuals without local recommended-list status to pay grade E-5 and E-6 at the time of hospitalization may be considered for promotion by local medical facility selection board; and (3) local facility selection boards will be appointed by the hospital commander.  Patients who are physically qualified as determined by the appropriate medical authority will be required to appear for an Appraisal Worksheet (DA Form 3356-R) by board evaluation.

14.  Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation contains guidance on the preparation of the DD Form 214.  It states items 5a and 5b will show the active duty rank and pay grade at 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.  There is no evidence in the applicant's records and he did not provide any evidence that shows he met the criteria (time in service, time in grade, and other criteria) for promotion, that he was recommended for promotion to the rank of SSG/E-6, that he appeared before a promotion board, or that he was promoted to the rank of SSG/E-6 prior to retirement on 7 June 1971.  

2.  Even if he had been recommended for promotion to the rank of SSG/E-6 while hospitalized, his promotion would have been contingent on availability of a higher position and/or meeting the announced cut-off scores for his specialty.  His service records do not contain official orders promoting him to SSG/E-6.  In the absence of documentary evidence confirming he was promoted or appointed to SSG/E-6 there is insufficient evidence to grant him the requested relief.


3.  The Board is not privy to the complete facts and circumstances surrounding the promotion of CPT EA while he was hospitalized.  It is also not possible to treat the issues the same because officer promotions are governed by different laws and regulations.  

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)                                         AR20140012600



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ABCMR Record of Proceedings (cont)                                         AR20140012600



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