BOARD DATE: 21 April 2015
DOCKET NUMBER: AR20140014149
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 promoted to sergeant (SGT)/E-5 with an effective date of 10 January 1972.
2. The applicant states he was promoted to the rank of SGT/E-5 two days before the effective date of his discharge. Whoever prepared his DD Form 214 was not informed of the status of his promotion.
3. The applicant provides:
* Special Orders Number 17
* DA Form 20 (Enlisted Qualification Record)
* DD Form 214
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. On 28 May 1970, the applicant enlisted in the Regular Army. He completed individual training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).
3. His DA Form 20 shows in:
* item 38 (Record of Assignments) - 10 February 1971 through
30 March 1971, he was assigned to duty in the RVN with Company C, 2nd Battalion, 1st Cavalry Division
* item 38 - 1 April 1971 to 9 January 1972, he was assigned to duty in the RVN with Company A, 2nd Battalion, 8th Cavalry, 3rd Brigade, 1st Cavalry Division
4. On 17 January 1972, Headquarters, 3rd Brigade, 1st Cavalry Division issued Special Orders Number 17 promoting the applicant to SGT/E-5 with an effective date of 10 January 1972. These orders show he was assigned to Company A, 2nd Battalion, 8th Cavalry, 3rd Brigade, 1st Cavalry Division at the time.
5. On 12 January 1972, he was honorably separated from active duty by reason of being an overseas returnee. He completed 1 year, 7 months, and 15 days of active service that was characterized as honorable. His DD Form 214 shows his rank as specialist four (SP4)/E-4 on the date of his separation.
6. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, governed the promotion of enlisted personnel.
a. Chapter 7 stated the precondition service obligation for promotion to pay grade E-5 was 3 months and waivers would not be granted.
b. The promotion authority was to remove the name of any individual from the local recommended list who was not qualified or who failed to qualify for reenlistment or extension of current enlistment to meet the remaining obligated active service requirement by the last day of the month established for promotion. Removal under this provision was mandatory.
c. Upon arrival of a Soldier whose records evidence local recommended list status for promotion to grades E-5 or E-6, the gaining commander will ascertain whether the individual met the required remaining obligated service for promotion.
DISCUSSION AND CONCLUSIONS:
1. The applicant provided Special Orders Number 17 showing he was promoted to SGT/E-5 on 10 January 1972.
2. The applicant was separated from active duty on 12 January 1972. The promotion list came out on 17 January 1972, which was after he had been released. Therefore, he was not eligible for promotion. It appears his name improperly remained on the promotion list after he had already been released from active duty.
3. In view of the foregoing, there is no basis for granting the relief he requests.
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) AR20110017819
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ABCMR Record of Proceedings (cont) AR20140014149
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