IN THE CASE OF:	

		BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150002857 


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 his rank/grade as a sergeant (SGT)/E-5.

2.  The applicant states, in effect, he was awarded the Army Commendation Medal (ARCOM) and the orders listed his rank as SGT. 

3.  The applicant provides his DD Form 214 and General Orders (GO) Number 498, dated 27 April 1970, awarding him the ARCOM.

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 service records show he enlisted in the Regular Army on 22 August 1968.  He completed basic combat and advanced individual training and he held military occupational specialty 13A (Field Artillery Crewman). 

3.  He served in Vietnam with A Battery, 7th Battalion, 13th Artillery, from 15 January 1969 to 25 March 1970.

4.  Special Orders (SO) Number 190, issued by Headquarters, 7th Battalion, 13th Artillery, on 18 August 1969, announced his appointment to the temporary (T) rank/grade of specialist four (SP4)/E-4. 

5.  SO Number 227, issued by Headquarters, 7th Battalion, 13th Artillery, on 27 September 1969, announced his appointment to the acting noncommissioned officer (NCO) grade of SGT/E-5. 

6.  His DA Form 20 (Enlisted Qualification Record) in item 33 (Appointments and Reductions) listed the temporary and permanent grades he held throughout his military service.  The highest rank/grade held was that of SP4/E-4. 

7.  SO Number 22, issued by Headquarters, 7th Battalion, 13th Artillery, on 26 January 1970, ordered his reassignment to the Transfer Point, U.S. Army Personnel Center, Fort Lewis, WA, for separation processing, in the rank of SP4. 

8.  He outprocessed Vietnam around 23 March 1970.  His DA Form 137 (Installation Clearance Record) shows he did so in the rank of SP4. 

9.  SO Number 84, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA on 25 March 1970 ordered his separation in the rank of SP4 effective 25 March 1970 and transfer to the U.S. Army Reserve (USAR) Control Group (Annual Training) in the USAR grade of SP4. 

10.  He was honorably released from active duty on 25 March 1970 and he was transferred to the USAR Control Group (Annual Training) to complete his Reserve obligation.  His DD Form 214 shows he completed 1 year, 7 months, and 4 days of total active service.  This form also shows in:

* items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) the entries "SP4" and "E-4" 
* item 6 (Date of Rank) the entry "18 Aug 69" [18 August 1969]

11.  GO Number 498, issued by Headquarters, I Field Force Vietnam Artillery, on 27 April 1970 awarded him the ARCOM for meritorious service.  The GO listed his rank as SGT.
12.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.

	a.  Items 5a and 5b show the rank/grade in which a member was serving at the time of separation with an indication of permanent or temporary; for example, "MSG (T) [master sergeant, temporary], SP4 (P), etc."

	b.  Item 6 shows the date of rank for the grade shown in item 5a.

		(1)  If the date of rank is different from the date of appointment, enter the date of appointment in item 30 (Remarks).

		(2)  If the grade at the time of separation is not permanent, the permanent grade, date of appointment, and date of rank, if different from date of appointment will be entered in item 30.

	c.  Item 30 is used to complete entries too long for their respective blocks and/or as a cross-reference.  An entry is made in item 30 with respect to the grade as follows: 

		(1)  If the date of appointment is different from the date shown in item 6, enter date of appointment as follows:  "Item 6 – Date of Appointment 15 August 1955."

		(2)  If the grade shown in item 5 is not permanent, enter the permanent grade, date of appointment, and date of rank if different from date of appointment, as follows:  "Item 5 – MSG (P) (E-8), Appointed 1 August 1988" or Item 5 – SP5 (T), Appointed 13 September 1958, Date of Rank 1 August 1958."

13.  Army Regulation 600-200 (Enlisted Personnel Management System) at the time, chapter 7 provided policy and procedures governing the promotion and reduction of enlisted Soldiers.  Paragraph 7-11 stated that company and detachment commanders could appoint acting SGTs to fill position vacancies existing in their units.  Acting NCOs could wear either the regular insignia of grade permanently affixed to the sleeve or acting NCO brassards.  Acting NCOs were not entitled to pay and allowances of such higher grades and service as an acting NCO would not be credited as time in a higher grade for appointment or date of rank purposes.  An acting NCO's status would be terminated for one of several reasons, including upon reassignment to another unit.

14.  At the time, Army Regulation 600-200, chapter 9 provided policy and procedures for preparation of the DA Form 20.  In pertinent part, it stated that each permanent and temporary grade of rank and pay grade to which appointed or reduced would be entered in item 33.  It did not provide for the entry of acting appointments.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed as an acting SGT/E-5 on 27 September 1969.  Unlike an appointment or promotion to temporary or permanent SGT/E-5, an acting SGT holds the rank/grade temporarily due to either the absence of a qualified SGT, due to a unit's need for an acting NCO, or due to other reasons.  He was an acting SGT only for the period of time he was assigned to the unit that appointed him to that acting grade.  He was not entitled to pay and allowances of that grade.

2.  The applicant's temporary appointment to acting SGT would have terminated upon his exit from the unit that appointed him to the acting grade.  That is why his clearance papers, reassignment orders, DA Form 20, and separation orders listed his rank as SP4. 

3.  Although the orders that awarded him the ARCOM listed his grade as SGT, regulatory guidance did not provide for the entry of acting NCO appointments on the DD Form 214.  It appears his DD Form 214 correctly listed his rank/grade of SP4/E-4.

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)                                         AR20150002857



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ABCMR Record of Proceedings (cont)                                         AR20150002857



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