BOARD DATE:	  28 April 2015

		DOCKET NUMBER:  AR20140015028 


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 promotion to the rank/pay grade of specialist four (SP4)/E-4.

2.  The applicant states:

* On 26 April 1968, while serving as an infantryman in Vietnam, his unit told him he would be promoted from the rank of private first class (PFC)/E-3 to SP4/E-4 after he returned from rest and recuperation leave
* later that same day there was a firefight in which he was wounded; he had to be medically evacuated
* he was moved to Camp Zama, Japan, then on to Oakland, CA for treatment and recovery
* in December 1968, he was reassigned to Fort Carson, CO
* he was never promoted to the rank of SP4/E-4
* he held the rank of PFC/E-3 when he was honorably released from active duty
* he never received a reduction in rank and he received an Army Good Conduct Medal
* his Congressman suggested he apply to this Board

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Letter Orders Number 05-1119322, dated 22 May 1973, issued by the Office of The Adjutant General, U.S. Army Reserve (USAR) Components Personnel and Administration Center, showing the applicant was honorably discharged from the USAR Control Group (Standby), effective 1 June 1973
* DA Form 20 (Enlisted Qualification Record)
* letter, undated, issued by Headquarters, 4th Infantry Division
* photocopy of the front of an envelope showing a return address from a member of Congress
* printout from the eBenefits webpage showing the procedures for amending a 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.  The applicant was inducted into the Army of the United States on 8 June 1967.  After completing initial training, he was awarded military occupational specialty 11B (Light Weapons Infantryman). 

3.  Special Orders (SO) Number 323, dated 19 November 1967, issued by Headquarters, 4th Infantry Division, show the applicant was permanently promoted to the rank of PFC/E-3.  His records are void of orders showing promotion to the rank of SP4/E-4.

4.  His DA Form 20, item 33 (Appointments and Reductions), does not show a promotion to the rank of SP4/E-4.  The highest rank shown is PFC, with a date of rank of 19 November 1967.  Item 40 (Wounds) shows the applicant was wounded first on 26 April 1968, then on 29 April 1968.  He was in a patient status from on or about 9 May to 5 November 1968.  As of the date of his wounds, the applicant had 5 months time in grade (TIG) and 10 months time in service (TIS).

5.  On 6 June 1969, the applicant was honorably released from active duty.  His DD Form 214 shows 1 year, 11 months, and 29 days of net active creditable service.  Items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) show his rank and pay grade as PFC/E-3.

6.  The applicant provides a photocopy of a memorandum, undated, issued by Headquarters, 4th Infantry Division, subject:  Recommendation for Promotion (Medical Evacuees), which essentially states:

* the applicant did not appear before a promotion board
* promotion was approved by this command
* all waiverable criteria were approved

7.  Army Regulation 600-200 (Personnel General - Enlisted Personnel Management System), in effect at the time, prescribes policy and procedures for the management of enlisted Soldiers.  Included are the requirements for promotion to SP4/E-4.  It states in:

	a.  Paragraph 7-12 (Promotion of Personnel missing or hospitalized as a result of hostile action), for personnel transferred to a medical facility, the losing promotion authority may include with that Soldier's records a recommendation for promotion.  Medical facility commanders may promote patients who have been so recommended, but not earlier than the date eligible under the normal TIG and TIS requirements (emphasis added).

	b.  Paragraph 7-15 (Eligibility and selection criteria) shows the TIG and TIS requirements for promotion to SP4/E-4.  TIG is listed as 6 months, and the TIS as 1 year.  A waiver of one half of TIG and of 5 months for TIS is permissible 
(i.e., 3 months TIG and 7 months TIS for SP4). 

DISCUSSION AND CONCLUSIONS:

1.  The applicant provides evidence that his unit in Vietnam approved his promotion to the rank of SP4/E-4.  While the letter is undated, it is reasonable to assume it was sent shortly after he was medically evacuated in April 1968.  His records do not contain this document and they are void of any indication he was either recommended for or that he was promoted.

2.  Regulatory guidance permitted medical facility commanders to promote Soldiers who had been recommended by their losing command; but only in cases where they met the normal TIG and TIS requirements.  At the time he was medically evacuated, the applicant was 1 month short of meeting the TIG criterion and 2 months away from fulfilling the TIS requirement.  
3.  Whether the applicant was not promoted due to an oversight, or because, by regulation, the medical facility commander was precluded from promoting him is unclear; however, it is clear his command intended for him to be promoted.  Thus, as a matter of equity, it would be appropriate to promote him to the rank/grade of SP4/E-4 effective 6 June 1968, the date at which he met the normal TIG and TIS requirements.  Additionally, as a result of this promotion, his DD Form 214 should be amended to show the rank and pay grade to which he is promoted, and he should receive the difference in pay from 6 June 1968 until his release from active duty on 6 June 1969.

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:

	a.  Issuing an appropriate document which advances the applicant to the rank/grade of SP4/E-4, effective 6 June 1968.

	b.  Amending items 5a and 5b of his DD Form 214 to show SP4/E-4, and in item 6 (Date of Rank) show 6 June 1968.

	c.  Providing the difference in pay between PFC/E-3 and SP4/E-4 for the period 6 June 1968 through 6 June 1969.



      _______ _  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)                                         AR20140015028



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ABCMR Record of Proceedings (cont)                                         AR20140015028



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