IN THE CASE OF:	   

		BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20150000285 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was separated in the rank of sergeant (SGT) versus specialist five (SP5).

2.  The applicant states he believes the failure to change his rank from SP5 to SGT was a clerical oversight.

3.  The applicant provides a 3-page statement, an index of his attachments, and:

* DD Form 214, for the period ending 19 October 1969
* DA Form 1049 (Personnel Action), unsigned and undated
* Special Orders Number 15, dated 19 January 1968
* Special Orders Number 22, dated 26 January 1968
* Special Orders Number 213, dated 23 September 1968
* a memorandum, dated 5 January 1969
* Special Orders Number 10, dated 12 January 1969
* a letter/transmittal of award, dated 10 March 1969
* Unit Orders Number 19, dated 22 February 1969
* Special Orders Number 104, dated 14 April 1969
* DA Form 2496-1 (Disposition Form), dated 25 July 1969
* a memorandum, dated 25 July 1969
* a memorandum/letter/correspondence, dated 6 August 1969
* an extract of his DA Form 20 (Enlisted Qualification Record)


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 13 February 1967 and held military occupational specialty (MOS) 26V (Strategic Microwave Systems Repairer).

3.  He was promoted to the following ranks/grades as indicated:

* private (PV2)/E-2 on 21 April 1967
* private first class (PFC)/E-3 on 16 August 1967
* specialist four (SP4)/E-4 on 26 January 1968

4.  His DA Form 20 shows he served in the Republic of Vietnam from on or about 4 March 1968 to on or about 16 October 1969.  During this period, he served with the U.S. Army Strategic Command (USASTRATCOM), Long Lines Battalion North, Nha Trang. 

5.  Special Orders Number 213, issued by Headquarters, USASTRATCOM on  23 September 1968, promoted him to the rank/grade of specialist five (SP5)/E-5, in MOS 26V in accordance with Army Regulation 600-200 (Enlisted Personnel Management System).  These orders indicate this promotion was temporary; however, his DA Form 20 shows this promotion was made permanent on 23 September 1969, under the authority of Army Regulation 600-200, paragraph 7-22a. 

6.  Unit Orders Number 19, issued by Headquarters, USASTRATCOM on 
22 February 1969, appointed him as an acting noncommissioned officer (NCO) in the rank/grade of SGT/E-5.

7.  He was honorably released from active duty on 19 October 1969, as an overseas returnee, and was transferred to the U.S. Army Reserve.  His DD Form 214 shows in:

	(a)  item 5a (Grade, Rate or Rank):  SP5 (T) [Temporary]

	(b)  item 5b (Pay Grade):  E-5

	(c)  item 6 (Date of Rank (DOR)):  23 September 1968

	(d)  item 30 (Remarks):  Item 6:  SP4(P) [Permanent], Appointed 26 January 1969, DOR 26 January 1968

8.  The applicant provided a self-authored statement, wherein he describes the circumstance behind his promotion/appointment to SGT and discusses why he believes this is a permanent rank that should be reflected on his DD Form 214.

9.  Army Regulation 611-201 (Enlisted Career Management Fields and Military Occupational Specialties), which identified the standard of grade authorizations for various military specialties, noted that as late as 1979, MOS 26L and 26V were authorized the rank of SP5 but not SGT upon promotion to pay grade E-5.

10.  Army Regulation 600-200, in effect at the time, prescribed policies, responsibilities, and procedures pertaining to the career management of Army enlisted personnel.  This regulation stated:

	a.  Individuals promoted to grades E-5 and E-6 would be promoted to specialist grades rather than NCO grades.  Exceptions were authorized only when:

		(1)  the standards of grades authorization (SGA) did not contain a specialist skill level for the grade and 3-digit MOS to which promotion was being accomplished, or

		(2)  when the SGA contained both specialist and NCO skills levels for the grade and 3-digit MOS to which promotion was being accomplished, and the individual occupied an authorized NCO position vacancy at the next higher pay grade level in the current table of organization and equipment, modified table of organization and equipment, table of distribution and allowances, or other authorization document.  An individual could not be promoted to SGT or staff sergeant if the promotion would cause a surplus of by-grade authorized NCO personnel in the unit to which the individual was assigned.

	b.  Later versions of the regulation stated that unit commanders could appoint qualified individuals as acting corporals (E-4) and acting SGTs (E-5) to serve in position vacancies existing in their units, including those resulting from temporary absences of assigned NCOs.  Appointment of acting NCOs and termination of such status was to be announced in orders issued by the appointing authority.  An acting NCOs status terminated upon reassignment to another unit, at the discretion of the unit commander who made the appointment, and upon assignment of a regularly-promoted NCO to the position.

	c.  Lateral appointments from specialist to NCO grades were authorized when the SGA changed to delete provisions for specialists in that pay grade and MOS.

11.  The Army discontinued the rank of SP5 on 1 October 1985.

12.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  It stated the purpose of a separation document was to provide the individual with documentary evidence of his or her military service at the time of separation.

	a.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contained guidance for preparation of the DD Form 214.

	b.  It stated all available records would be used as a basis for preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  The instructions for:

		(1)  item 5a stated to enter the grade in which serving at the time of separation, indicating whether permanent or temporary (e.g., SP5 (P));

		(2)  item 5b stated to enter the pay grade;

		(3)  item 6 stated to enter the DOR for the grade shown in item 5a; and

		(4)  item 30 stated the remarks section would be used to complete entries too long for their respective items.  Specifically, if the grade shown in item 5 was not permanent, enter the permanent grade, date of appointment, and date of rank; otherwise, enter the date of appointment to the permanent grade.


DISCUSSION AND CONCLUSIONS:

1.  The Army structure at the time of the applicant's separation authorized the rank of SP5 and SGT.  This was done in order to distinguish Soldiers who held leadership positions from those who held technical/administrative positions.  Promotion to either specialist or NCO status was determined by MOS.  The standard of grade documentation at the time limited individuals in technical MOSs to the rank of SP5 upon promotion to pay grade E-5, and the applicant's MOSs of 26L and 26V were considered technical MOSs.

2.  Special orders promoted him to the rank of SP5.  There are no orders promoting him to the rank of SGT in his records.  The evidence of record does show he was appointed as an acting SGT; however, this appointment is in a temporary status and does not confer promotion.  Appointments are tools used to fill vacant positions until such time as a suitable replacement of the proper rank can be obtained.  Additionally, temporary promotions expire when a Soldier leaves the unit, or in this case, is released from the unit and active duty.  

3.  His DD Form 214 shows his rank/grade as SP5/E-5, which properly and accurately reflected his rank and the conditions that existed at the time of his discharge.  As such, there is no basis for granting the applicant's requested relief.  
4.  However, his rank is incorrectly shown on his DD Form 214 as temporary, when, in fact, his promotion was made permanent on 23 September 1969.  His DOR should be corrected to show 23 September 1969, the date he was permanently promoted to SP5, and the item 30 entry pertaining to item 6 is no longer relevant and should be deleted from 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 to show his rank/grade on his DD Form 214 as SGT/E-5.

2.  Notwithstanding the recommendation to deny relief in this case, the Board determined that an administrative error in the record of the individual concerned should be corrected.  Therefore, the Board requests that the Army Review Boards Agency, Case Management Division administratively correct the DD Form 214 of the individual concerned as follows:

* item 5a, to delete the entry "SP5 (T)" and replace it with the entry        "SP5 (P)"
* item 6, to delete the entry "23 Sep 68" and replace it with the entry        "23 Sep 69"
* item 30, to delete the entry "SP4 (P) E-4  Aptd  26 Jan 69  DOR 26 Jan 68" in its entirety  



      _______ _   _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)                                         AR20150000285





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ABCMR Record of Proceedings (cont)                                         AR20150000285



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