IN THE CASE OF:	  

		BOARD DATE:	  24 September 2015

		DOCKET NUMBER:  AR20150002739 


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 (Certificate of Release or Discharge from Active Duty) to show his: 

* Rank/grade as sergeant (SGT)/E-5 instead of specialist four (SP4)/E-4 
* Award of the Army Commendation Medal 

2.  The applicant states if the Board checks his records, it will notice he got paid as an E-5 until he was separated in May 1980.  He was also given a green folder that contained certificates, orders, and an Army Commendation Medal. He would like that medal.  He wants his DD Form 214 corrected before he expires.

3.  The applicant provides his DD Form 214 and Honorable Discharge Certificate.

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's records show he enlisted in the Regular Army on 10 may 1977 and he held military occupational specialty 19F (Tank Driver).  He served at Fort Stewart, GA and at Fort Knox, KY. 

3.  On 22 September 1978, Headquarters, U.S. Army Armor Center, Fort Knox published Orders 183-40 promoting him to SP4/E-4 effective 22 September 1978. 

4.  On 9 November 1978, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully possessing marijuana.  His punishment consisted of a reduction to private first class/E-3 (suspended for 90 days), forfeiture of pay, and extra duty and restriction. 

5.  On 26 December 1979, Headquarters, U.S. Army Armor Center, Fort Knox published Orders 247-32 promoting him to specialist five (SP5)/E-5 effective 28 December 1979. 

6.  On 25 February 1980, Headquarters, U.S. Army Armor Center, Fort Knox published Orders 38-69 revoking Orders 183-40 that promoted him to SP5/E-5 but approving "defacto status for the period of the invalid promotion." 

7.  His records contain a DA Form 4187, dated 20 February 1980, addressed to his commander, that states, in accordance with paragraph 7-4d of Army Regulation 600-200 (Enlisted Personnel Management), defacto status was approved for the applicant.  Defacto status was granted for the invalid promotion period from 1 January 1979 to 29 February 1980.  The applicant was authorized all pay and allowances during the invalid period.

8.  His DA Form 2-1 (Personnel Qualification Record) shows in: 

* Item 9 (Awards, Decorations, and Campaigns) no entry for the Army Commendation Medal
* Item 18 (Appointments and Reductions) he was advanced to SP5/E-5 on 28 December 1979 but he reverted to his previous rank of SP4 with a date of rank as 22 September 1978 

9.  His records do not contain orders awarding him the Army Commendation Medal. 

10.  He was honorably released from active duty on 16 May 1980 by reason of completion of required service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligations.  His DD Form 214 shows in:

* Items 4a (Grade, Rate, or Rank) and 5b (Pay Grade) the entries "SP4" and "E-4"
* item 12h (Effective Date of Pay Grade), 22 September 1978
* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the Expert Marksmanship Qualification Badge with Pistol Bar (.45 Caliber) 

9.  On 23 February 1983, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO published orders honorably discharging him from the USAR effective 13 March 1983 by reason of having completed his military service obligations.  The orders listed his rank as SP5. 

11.  Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at time of separation and are obtained from the Soldier's records (promotion or reduction orders). 

12.  Army Regulation 600-8-22 (Military Awards) states the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes him/herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was advanced to SP5/E-5 on 28 December 1979.  However, it appears his promotion was determined to be invalid.  It also appears his promotion orders were issued in error due to no fault of his.  As a result, his promotion was revoked but he was granted defacto status. Defacto status applies to a member who was promoted by competent authority, performed duties of the higher grade, and accepted pay and allowances of the higher grade in good faith and without intent to defraud.


2.  Although he was granted defacto status, his promotion was actually revoked and he reverted back to the rank/grade of SP4/E-4.  He held this rank/grade at the time of his release from active duty on 16 May 1980.  Thus, his DD Form 214 reflects his rank/grade of SP4/E-4 and there is insufficient evidence provided to support a change to his rank/grade. 

3.  The governing Army regulation states that for personal decorations (which include the Army Commendation Medal) formal recommendations, approval through the chain of command, and announcement in orders are required.  The certificate by itself is insufficient to confirm this award.  In the absence of orders or any other corroborating documents showing orders were published, there is an insufficient evidentiary basis for granting this portion of 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)                                         AR20150002739





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ABCMR Record of Proceedings (cont)                                         AR20150002739



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