IN THE CASE OF:  	  

		BOARD DATE:  18 August 2015	  

		DOCKET NUMBER:  AR20140018474


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 pay grade E-5.

2.  The applicant states he was serving as a private first class (PFC)/pay grade E-3 when he was seriously wounded in the Republic of Vietnam on 7 June 1967.  He spent the next 17 months in the hospital undergoing many surgeries before being medically discharged.  At the time of his discharge, he was advanced to specialist four (SP4)/pay grade E-4.  He believes he lost promotion potential due to his lengthy hospitalization and lack of proper maintenance of personnel records by hospital administrators.  He states it was policy at the time to advance personnel who were hospitalized to the highest rank they could have attained had they not been injured.  Therefore, he believes the highest rank he should have received upon his separation was promotion to specialist five (SP5)/pay grade E-5 based on his record of "excellent" performance.

3.  The applicant provides copies of an award for the Army Good Conduct Medal, a letter showing his authorized awards, and a DD Form 215 (Correction to 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 enlisted in the Regular Army on 1 November 1966 for a 3-year period.  He completed training and was awarded military occupational specialty (MOS) 11E (Armor Crewman).

3.  He arrived in Vietnam on or about 4 April 1967.  On 8 April 1967, Special Orders 98 issued by 25th Infantry Division promoted him to the permanent rank of PFC/E-3.

4.  He was seriously wounded in action on 7 June 1967 and medically evacuated to a military hospital at Camp Zama, Japan, by 21 June 1967.  On 2 September 1967, he was again medically evacuated to the U.S. Army Hospital at Fort Ord, CA.

5.  Unit Orders Number 23 issued by the U.S. Army Hospital, Fort Ord, dated 3 October 1967, appointed him to the temporary rank of SP4/E-4.

6.  The applicant was medically retired and placed on the Temporary Disability Retired List with a 60-percent disability rating on 25 October 1968 after having spent 19 months in divers hospitals.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows the following:

* item 5a (Grade, Rate or Rank) - "SP4 (T)"
* item 5b (Pay Grade) - "E4"
* item 6 (Date of Rank) - "3 OCT 67"
* item 22a (Net Service this Period) - 1 year, 11 months, and 25 days
* item 30 (Remarks) - "E-3 (P) Apt: 8 Apr 67"

7.  Army Regulation 600-200 (Enlisted Personnel Management System), then in effect, prescribed the policies and procedures for the promotion and reduction of enlisted Soldiers.

	a.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated the promotion of enlisted personnel to grades E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.  Control would be exercised to insure that appointments did not exceed local pay grade vacancies, major command ceilings, or allotted quotas.

	b.  Promotion of Soldiers hospitalized as a result of hostile action would not be deprived of consideration for promotion.  Time spent in a casualty status would be included in computing eligibility.  Promotion quotas were not required nor were MOS restrictions in the monthly promotion quota directives.  For Soldiers hospitalized, the losing promotion authority could include a recommendation for promotion in the wounded Soldier's record.  Medical facility commanders with promotion authority could promote assigned patients, but not earlier than the date of eligibility under the normal time-in-grade and service requirements.

	c.  In order to be eligible for temporary appointment to pay grade E-4, a Soldier must have completed 6 months in pay grade E-3, be in an appointable status, and hold and be serving in the MOS in which the appointments are authorized.  A Soldier must be MOS qualified and occupy a position vacancy of a higher rank or grade and be physically qualified to perform the duties of the MOS and grade.  The permanent appointment of Regular Army Soldiers in the grade in which serving would become automatic for pay grade E-4 at 12 months? time in service in the temporary rank.  For permanent appointment, no orders were required.

	d.  For temporary appointment to pay grade E-5, the specified completion of 8 months' time in pay grade E-4 and 3 years? time in service (normal promotion) or 2 years' time in service (accelerated promotion).  Recommendations for promotion to pay grade E-5 would be prepared on a DA Form 2496 (Disposition Form), signed by the recommending official, and submitted through channels to the headquarters of the promotion authority.  Waivers for one-half of the time in the lower pay grade were permissible.  There were no provisions for automatic promotion to pay grade E-5.

8.  Army Regulation 635-5 (Separation Documents), then in effect, established standardized policy for preparing and distributing the DD Form 214.  It stated that items 5a and 5b would show the active duty rank and pay grade at the time of the Soldier's separation, taken from the Soldier's promotion/reduction orders.  Item 6 would show the associated date of rank.

DISCUSSION AND CONCLUSIONS:

1.  The applicant may have been misinformed as to the Army's promotion policy for seriously wounded Soldiers.  There was no known policy to automatically advance or promote a Soldier solely based on the fact that they were seriously wounded and then ultimately medically retired.

2.  The applicant was advanced to the temporary rank of SP4/E-4 on 3 October 1967 by the U.S. Army Hospital, Fort Ord, in unit orders, not at the time of his separation.  By regulation, he should have been automatically permanently advanced to SP4/E-4 effective 2 October 1968 upon 1 year of time in the temporary grade.

3.  Concerning promotion to pay grade E-5, he met the time in grade minimum criteria of 8 months in pay grade E-4.  However, as he was medically retired before completing 2 years of time in service, he did not meet the minimum time-in-service eligibility criteria for promotion to pay grade E-5.  The normal time in service eligibility criteria for promotion to pay grade E-5 was 3 years as an E-4.  The regulatory guidance stated that hospital commanders could promote, but not earlier than the normal time-in-grade and service requirements.

4.  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 SP5/E-5.  His service records do not contain orders promoting him to SP5/E-5, his DA Form 20 shows the highest rank/grade he attained was SP4/E-4 (T), and his separation orders listed his rank as SP4.  The evidence is insufficient as a basis for granting the requested relief.

5.  However, a review of his records warrants a related administrative correction by the Army Review Boards Agency (ARBA) Case Management Division (CMD).  On 2 October 1967, the applicant met the eligibility criteria for permanent advancement to SP4/E-4.  There was no requirement to publish permanent orders.  Therefore, ARBA CMD should delete the "T" identifier and replace it with the letter "P" in item 5a of his DD Form 214.

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 also determined that an administrative error in the records of the individual should be corrected.  Therefore, the Board requests that ARBA CMD administratively correct the records of the individual concerned by deleting the letter "T" and replacing it with the letter "P" in item 5a of his DD Form 214 with a separation date of 25 October 1968.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to our Nation.  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)                                         AR20150000495



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ABCMR Record of Proceedings (cont)                                       AR20140018474



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