BOARD DATE: 19 May 2015
DOCKET NUMBER: AR20140016939
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 records be corrected to show that he was retired in the pay grade of E-8.
2. The applicant states, in effect, that he should have been promoted to the pay grade of E-8 while in Vietnam; however, he was not informed that he had been selected for promotion because he departed Vietnam 4 weeks early due to the hospitalization of his wife. He goes on to state that had he known he was promoted to the pay grade of E-8 he would have extended to serve the 2-year lock-in. He also states that after locating the paperwork showing he was promoted he was told to apply to the Board.
3. The applicant provides a one-page letter explaining his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and copies of the Circular and Special orders announcing his selection and promotion to the pay grade of E-8.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3Â 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 promoted to the pay grade of E-7 in the Regular Army on 19 October 1964. He reenlisted on 9 February 1969 for a period of 3 years and was transferred to Vietnam on 27 May 1969.
3. On 22 August 1969 he submitted his application for voluntary retirement to be effective 1 June 1970.
4. On 9 September 1969, Department of the Army Circular 624-81 (Recommended List for Temporary Promotion to Master Sergeant E-8) was released and announced that the applicant had been selected for promotion to E-8 with a sequence number of 1126.
5. On 5 January 1970, Special Orders Number 2, issued by Headquarters, Department of the Army announced the promotion of the applicant to the pay grade of E-8 effective 5 December 1969.
6. On 16 January 1970, the applicant signed a statement declining to accept promotion to the pay grade of E-8 as announced in Special Orders Number 2.
6. The applicant departed Vietnam on 13 March 1970 for assignment to Fort Benning, Georgia where he remained until he was retired in the pay grade of E-7 by reason of length of service on 31 May 1970. He had served 26 years,
6 months and 16 days of active service.
7. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, served as the authority for enlisted promotions. It provided, in pertinent part, that individuals promoted to the pay grades E-7 through E-9 incurred a 2-year service obligation upon promotion. It also provided that individuals who had an approved retirement were in a non-promotable status and could not accept a promotion unless the request for retirement was withdrawn and approved by Headquarters, Department of the Army.
DISCUSSION AND CONCLUSIONS:
1. The applicantÂ’s contention that he should have been promoted to the pay grade of E-8 in Vietnam and retired in that pay grade has been noted and found to lack merit.
2. It is apparent based on the evidence submitted by the applicant that he was made aware of his selection to the pay grade of E-8 while he was in Vietnam because he submitted his declination for promotion and his request for voluntary retirement while still in Vietnam.
3. Additionally, he submitted his request for voluntary retirement before his selection for promotion and actual promotion was announced, which placed him in a non-promotable status.
4. While the applicant had the 2 years remaining in his final enlistment required to accept promotion to the pay grade of E-8, he elected to decline the promotion.
5. Accordingly, there appears to be no basis to grant his request for advancement to the pay grade of E-8 on the Retired List.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X______ ___X_____ _X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States. The applicant and all Americans should be justifiably proud of his service in arms.
__________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) AR20140016939
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ABCMR Record of Proceedings (cont) AR20140016939
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