IN THE CASE OF:	

		BOARD DATE:	  14 July 2015

		DOCKET NUMBER:  AR20140015280 


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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show his rank/grade as sergeant (SGT)/E-5 and his military occupational specialty (MOS) as 11C4O (Indirect Fire Infantryman).

2.  The applicant states his DD Form 214 incorrectly reflects that he was released from active duty (REFRAD) in the rank of specialist four (SP4)/E-4 and in MOS 94B2O (Cook).  He was serving in the rank of SGT/E-5 in MOS 11C4O upon his REFRAD.

3.  The applicant provides copies of his DD Form 214 and his separation medical/physical examination.

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 6 June 1968 for a 2-year period of service.  He completed basic training and advanced individual training as a cook.  He was awarded MOS 94B1O by Special Orders Number 267 dated 23 September 1968.

3.  He was assigned to Fort Belvoir, VA on 21 October 1968 for duty as a cook (MOS 94B1O).  The applicant's DA Form 20 (Enlisted Qualification Record) contains the following pertinent entries:

* item 22 (MOS) – 94B, Cook, effective 4 October 1968
* item 27 (Military Education) – Cook, 94B, school 8 weeks in 1968
* item 33 (Appointments and Reductions) – 

* Private E-1 (permanent), 6 June 1968
* Private E2 (permanent) 6 October 1968, paragraph 7-19 Army Regulation 600-200
* Private First Class E3 (permanent), 10 December 1968, Special Order (SO) Number 161, 1968
* SP4, E4 (temporary), 20 March 1969 by SO Number 40, 1960

4.  On 6 May 1969, he was transferred to Korea (U.S. Army Pacific (USARPAC)) with assignment to Company A, 3rd Battalion, 23rd Infantry Regiment for duty as a first cook (MOS 94B20).

5.  On 3 February 1970, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his prescribed place of duty.  The DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ) shows his grade as "SGT E-5."  His punishment included forfeiture of pay, restriction, and extra duty. 

6.  SO Number 104 issued by Headquarters, 2nd Infantry Division, on 14 April 1970 directed the applicant's reassignment on permanent change of station orders.  The applicant's standard name line shows his rank as "SP4" and his MOS as "94B20."

7.  He departed Korea as an overseas returnee and was transferred to Fort Lewis, Washington.  SO Number 148 issued by Headquarters, Fort Lewis, on 28 May 1970 shows his rank as "SGT" and MOS as "11C40."   He was honorably REFRAD.  The DD Form 214 prepared at the time of separation shows:

* item 5a (Grade, Rate or Rank) – SP4
* item 5b (Pay Grade) – E-4
* item 12 (Last Duty Assignment) – Company A, 3rd Battalion, 23rd Infantry Regiment, 2nd Infantry Division
* item 22a (Net Service This Period) – 1 year, 11 months, 23 days 
* item 22b (Foreign and/or Sea Service) – 1 year and 22 months USARPAC
* item 23a (Specialty Number & Title) – 94B20, Cook

8.  A review of his official records failed to show orders promoting him to the rank of "SGT" or awarding him the MOS of "11C".  

9.  As evidence to support his application, the applicant provided a copy of his separation medical/physical examinations documents that show in item 5 (Grade and Component or Position) the entry "SGT E-5."  Item 11 (Organization Unit) shows he was assigned to Company A, 3rd Battalion, 23rd Infantry Regiment, 2nd Infantry Division, and stationed in Korea.  The original copies of his separation medical records were also filed in his OMPF.

10.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army personnel.  

   a.  It states in pertinent part that units at the company, troop, battery and separate detachment commanders may appoint qualified individuals as acting corporals (E-4) and acting SGT (E-5) to serve in position vacancies existing in their units including those resulting from temporary absences of assigned noncommissioned officers (NCO).  Acting NCOs may wear either the regular insignia of permanent grade or acting NCO insignia.  Acting NCOs are not entitled to pay and allowances at the higher grade and service will not be credited as time in a higher grade for promotion or date of rank purposes.   Appointment of acting NCOs will be announced in orders issued by the appointing authority.  Acting NCOs status will be terminated at the discretion of the unit commander who made the appointment, upon reassignment to another unit and upon reassignment of a regularly promoted NCO to the position.  In addition, control will be exercised by all commands to ensure that promotions do not exceed pay grade vacancies, personnel ceilings or allotted quotas. 

   b.  The temporary appointment of Regular Army enlisted personnel to the grade in which serving will automatically become permanent on the date of completion of time in grade and time in service.  Effective April 1969 for E-4, the time in grade is 9 months and time in service is 3 years.  For E-5, the time in grade is 1 year and time in service is 6 years. 

	c.  All Soldiers are provided basic combat skills training after they enter the Army.  This is provided to ensure that all Soldiers have the survival skills to perform basic infantry missions when the need arises.  The exigencies of combat may require non-infantry Soldiers to temporarily perform the basic infantry duties that all Soldiers are taught, but it is not a basis for the award of an MOS.  Award of an MOS normally represents a significant investment of time and effort both on the part of the Army and the Soldier.  Reclassification from a primary MOS for first term Soldiers is prohibited during the first 24 months of service though there are very limited exceptions such as loss of qualifications, physical disability, or lack of a security clearance.

	d.  Award of an MOS will be recorded in item 22 of DA Form 20.  Designation of a primary MOS and a secondary MOS will be announced in special orders. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was serving as an infantryman in MOS 11C and was REFRAD in the rank of SGT was carefully considered. 

2.  There is a discrepancy in the applicant's records pertaining to his grade and rank that is not easily explained by the evidence of record.  There are documents that show his rank/pay grade as SGT/E-5.  Yet upon his reassignment from 2nd Infantry Division and then REFRAD, his DD Form 214 shows his rank and pay grade as SP4/E-4.  A review of the regulatory guidance suggests the applicant, while serving as the unit first cook, a position of responsibility requiring an NCO, may have been appointed an acting SGT/E-5.  During his service as the acting NCO, he would have been allowed to wear the SGT rank insignia.  However, there are no advancement or acting promotion orders within his OMPF as required by regulation.

3.  Upon his reassignment to Fort Lewis, the acting SGT orders would have been revoked per regulatory guidance; thus he would have retained the rank/grade of SP4/E-4.  Through administrative error, his separation orders were published showing his rank as SGT.  However, upon a second review and during the preparation of his DD Form 214 it appears it was determined his correct rank and pay grade was SP4/E-4 which were appropriately entered on his DD Form 214.  Thus, the evidence of record and regulatory guidance support the grade and rank shown on his DD Form 214.  

4.  Further review shows there is no evidence to support the applicant's contention that he was awarded MOS 11C.  Based on his service in Korea, there is a presumption that he was required to perform duties expected of all Soldiers, to include the duties of an indirect fire infantryman as he was assigned to an infantry unit.   However, he did not attend the appropriate schooling for MOS 11C nor are there orders in his OMPF awarding him that MOS.  His OMPF does contain a few documents that show his MOS was "11C."  However, as he was a 2-year inductee, it is improbable that he attended the appropriate training to officially receive award of that MOS.  Therefore, his MOS as shown on his DD Form 214 is assumed to be correct due to lack of sufficient evidence to show otherwise. 

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)                                         AR20140015280



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ABCMR Record of Proceedings (cont)                                         AR20140015280



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