BOARD DATE: 23 April 2015
DOCKET NUMBER: AR20140015843
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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was promoted to the rank/grade of sergeant (SGT)/E-5.
2. The applicant states he was the only African American assigned to the 199th Light Infantry Division, Vietnam. His superior officer threatened to make his life a living hell as long as he was assigned to the unit because he was a n----r. The officer and other Soldiers set the applicant's feet on fire while he was sleeping after three days and nights of intense combat. When the applicant awoke, the Soldiers were all laughing at him, calling him a n----r, and he was refused treatment for his burns. Just as his superior officer promised, the applicant never received a promotion to SGT/E-5, but all of the other Soldiers were promoted to the next rank.
3. The applicant provides no additional evidence.
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 enlisted in the Regular Army on 9 October 1967. He completed training and he was awarded military occupational specialty 11C (Indirect Fire Crewman). He was advanced to private (PV2)/E-2 on 9 February 1968.
3. He served in Vietnam from 31 March 1968 to 27 March 1969 with the 199th Infantry Brigade.
4. On 6 April 1968, shortly after his arrival in Vietnam, Headquarters, 199th Infantry Brigade (Sep) (Light) published Special Orders Number 97 appointing him to private first class (PFC)/E-3 effective 6 April 1968.
5. On 23 November 1968, Headquarters, 199th Infantry Brigade (Sep) (Light) published Special Orders Number 328 appointing him to specialist four (SP4)/E-4 effective 11 November 1968.
6. On 17 July 1969, he underwent a separation physical at Fort Benning, GA. His Standard Form 88 (Report of Medical Examination) listed his rank as "SP4/E-4."
7. Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the entry SP4/E-4 as the highest rank/grade he held.
8. Special Orders Number 274, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, dated 1 October 1969, released the applicant from active duty and transferred him to the U.S. Army Reserve Control Group (Annual Training) in the rank/grade of SP4/E-4.
9. His service records do not contain official orders promoting him to SGT/E-5.
10. On 8 October 1969, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining obligation. He completed 2 years of creditable active service. His DD Form 214 shows in:
* Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) the entries "SP4" and "E-4" respectively
* Item 6 (Date of Rank) the entry "11 Nov 68"
11. Army Regulation 600-200 (Enlisted Personnel Management System), 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 grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.
12. Army Regulation 635-5 (Separation Documents), then in effect, 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, in pertinent part, that items 5a and 5b will show the active duty rank and pay grade at time of the Soldier's separation taken from the Soldiers promotion/reduction orders. Item 6 shows the date of rank.
DISCUSSION AND CONCLUSIONS:
The available evidence is insufficient to correct the applicant's DD Form 214 to show he was promoted to or released from active duty in the rank of SGT/E-5. His service records do not contain official orders promoting him to SGT/E-5, his DA Form 20 shows the highest rank/grade he attained was SP4/E-4, and his separation orders listed his rank as SP4. In the absence of documentary evidence confirming he was promoted/appointed to SGT/E-5 the evidence is insufficient as a basis for granting the requested relief.
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) AR20140015843
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ABCMR Record of Proceedings (cont) AR20140015843
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