IN THE CASE OF:	  

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20140014838 


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 corrections of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show in:

* Item 6a (Grade, Rate, or Rank) - specialist five (SP5) instead of specialist four (SP4)
* Item 6b (Pay Grade) - pay grade E-5 instead of E-4

2.  The applicant states he was discharged in pay grade E-5, not E-4.  He discovered the error when the American Legion chartered a new post in his town and his DD Form 214 was required.  Currently, his DD Form 214 is required to add the word "Veteran" to his driver's license.  The truth has no statute of limitations.

3.  The applicant provides copies of the following:

* DA Form 2139 (Military Pay Voucher)
* DD Form 214
* Orders Number D-07-908632

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 17 March 1972.  He was discharged from the DEP on 10 September 1972.

3.  He enlisted in the Regular Army (RA), in pay grade E-2, on 11 September 1972, for 3 years.  He was awarded military occupational specialty 12B (combat engineer).  He served in Germany from 6 February 1973 through 31 August 1975.

4.  His records contain the following:

   a.  Special Orders (SO) Number 100, issued by Headquarters, U.S. Army Europe and 7th Army, on 10 April 1974, promoting him to pay grade E-4 effective 1 April 1975.

   b.  A DA Form 2496 (Disposition Form), dated 16 January 1975, wherein his company commander recommended him for promotion to pay grade E-5 with a waiver of the time in service.

   c.  A DA Form 3355-R (Promotion Point Worksheet), dated 29 January 1975, which shows he had a total of 658.8 points for promotion to pay grade E-5 in MOS 12B.

   d.  A Recommended List for Promotion of Enlisted Personnel to Grade E-5 memorandum, dated 30 January 1975, wherein his name is listed as being recommended for promotion to pay grade E-5.  The memorandum noted he was ineligible for promotion against the Department of Army announced cut-off scores until 1 March 1975.

   e.  A DA Form 2496, dated 15 May 1975, wherein he requested an overseas separation in Europe.  The form lists his rank as E-5.

   f.  A request for overseas separation statement, dated 15 May 1975, wherein he acknowledged he understood the requirements/obligations of being separated from the service in Europe.  The statement lists his rank as E-5.
   g.  SO Number 210, issued by Headquarters, U.S. Army, Europe and 7th Army on 29 July 1975, reassigning him to the Transfer Station for separation processing.  The orders list his rank as E-4.

   h.  An Enlisted Overseas Separation memorandum, dated 30 July 1975, which shows his request for an overseas separation was approved on the same date.  The memorandum does not list his rank.

   i.  An Enlisted Overseas Separation memorandum, dated 4 August 1975, which lists his rank as E-5.

   j.  SO Number 247, issued by Headquarters, U.S. Army, Europe and 7th Army on 4 September 1975, releasing him from active duty effective 10 September 1975.  The orders list his rank as E-5.

5.  He provided a copy of a DA Form 2139, for pay period 1 to 10 September 1975, which shows his basic pay grade as E-5.

6.  He was honorably on released from active duty on 10 September 1975, at the expiration of his term of service, and he was transferred to the USAR.  He was credited with completing 2 years, 11 months, and 28 days of active service.  He was also credited with completing 5 months and 25 days of prior inactive service. His DD Form 214 lists in:

* Item 6a - SP4
* Item 6b - E-4
* Item 7 (Date of Rank) - 1 April 1974

7.  His also provided a copy of Order Number D-07-908632, dated 31 July 1986, discharging him from the USAR on the same date.  The orders list his rank as   E-5.

8.  Army Regulation 600-200, in effect at the time, prescribed policies and procedures for the career management of Army enlisted personnel.  The regulation stated in:

   a.  Paragraph 7-15 - the normal requirements for promotion to pay grade E-5.

   b.  Paragraph 7-28 - Soldiers who failed to reenlist or extend to meet the service remaining obligation for promotion must be removed from local recommended lists.

   c.  Paragraph 7-32 - The service remaining obligation was 3 months for promotion to E-5 and waivers would not be granted.  The service remaining obligation would be computed from the first day of the authorized month of promotion.  The promotion authority would promote the Soldier promptly when they received evidence (reenlistment or extension document) that the service remaining obligation had been met.  The effective date of promotion would be the same day.  The promotion authority would remove from the local recommended list the name of any Soldier who was not qualified, or who failed to qualify, for reenlistment or extension of current enlistment by the last day of the month set for promotion.

9.  Army Regulation 635-5 (Separation Documents), in effect at the time, govern the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty.  The regulation states items 6a and 6b would list the active duty grade or rank and pay grade at time of separation and item 7 would list the effective date for the grade shown in items 6a and 6b.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that on 30 January 1975 the applicant was recommended for promotion to E-5 and his name was incorporated on the promotion standing list.  Several memoranda relating to his overseas separation list his rank as E-5.  A DA Form 2139 shows he was being paid as an E-5 at time of his separation.  

2.  Promotions of enlisted personnel are announced by a promotion instrument/order.  Here, there are no orders that confirm if and when he was promoted to   E-5.  Nevertheless, the preponderance of the evidence, as shown by the pay record and the multiple orders, supports his contention that he was promoted to SP5 prior to his release from active duty.  The effective date of such promotion remains problematic.  The earliest date he is shown as an E-5 in the available records is 15 May 1975.  In the absence of an actual promotion instrument, it would be appropriate to correct his DD Form 214 to show this as the effective date of his promotion.








BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* deleting from items 6a and 6b of his DD Form 214 the entries "SP4 and  E-4" and replacing them with the entries "SP5 and E-5"
* deleting from item 7 of this DD Form 214 the entry "74-04-01" and replacing it with the entry "75-05-15"



      _______ _   __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)                                         AR20140014838





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ABCMR Record of Proceedings (cont)                                         AR20140014838



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