RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            19 FEBRUARY 2004                  
	DOCKET NUMBER:   AR2003091020

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Robert L. Duecaster		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his DD Form 214 (Report of Transfer) be corrected to reflect his rank and pay grade as Sergeant E-5, instead of the CPL (Corporal) E-4 rank and pay grade shown.

2.  The applicant states that he assume that a typographical error was made.  He did not realize the error until he filed a claim with his state representative.

3.  The applicant provides a copy of his DD Form 214 and a copy of the 26 May 1970 order effecting his assignment to a transfer point.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 12 June 1970.  The application submitted in this case is dated 2 May 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was inducted into the Army on 13 June 1968, completed training as an artilleryman, and in November 1968 was assigned to an artillery battery in Vietnam, where he was awarded the Army Commendation Medal with "V" device for heroism and another Army Commendation Medal for meritorious service.  He was promoted to Corporal on 13 July 1969.  He returned to the United States, and in December 1969 was assigned to an artillery battery at Fort Sill, Oklahoma.  

4.  On 24 March 1970 the applicant's commanding officer recommended that the applicant be promoted to Sergeant, at the same time stating that there was no position vacancy for a Sergeant in the applicant's specialty, and that he understood that the applicant might be required to change duty positions in order to be promoted in a position vacancy.  The applicant appeared before a promotion board and was recommended for promotion by the board members.

5.  On 21 May 1970 the applicant underwent a medical evaluation prior to his release from active duty.  The report of that evaluation reflects his rank and pay grade as Sergeant E-5, as does the report of medical history that he furnished for that examination.  

6.  Documents in the applicant's OMPF (Official Military Personnel File), some of which he completed, dated in May 1970 and prior to the 21 May 1970 date on the above-mentioned medical reports, show his rank and pay grade as Corporal E-4.

7.  On 26 May 1970 Headquarters, 8th Battalion (155mm) (SP), 17th Infantry, the applicant's parent unit, published an order awarding the applicant the Good Conduct Medal.  His grade on that order is shown as E4.  On that same date, the above-mentioned unit published an order assigning him to a transfer point for separation processing.  His grade on that order is shown as E5.      

8.  On 9 June 1970 the applicant completed a debriefing certificate, indicating on that document his rank and pay grade as Sergeant E-5. 

9.  On 10 June 1970 Headquarters, United States Army Field Artillery Center and Fort Sill published an order releasing the applicant from active duty on 12 June 1970 and assigning him to the Army Reserve Control Group (Annual Training) at St. Louis.  His rank on that order is shown as Corporal.  

10.  The applicant's 12 June 1970 DD Form 214 shows his rank and pay grade as Corporal E-4, and his date of rank as 13 July 1969.

11.  The applicant's OMPF does not contain an order promoting him to Sergeant.

12.  On 22 May 1974 the Army Reserve Components Personnel and Administration Center published an order discharging the applicant from the Army Reserve Control Group (Standby) effective on 1 June 1974.  His rank on that order is shown as Sergeant.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was recommended for promotion by members of a promotion board in March less than three months prior to his release from active duty.  The applicant's DD Form 214 and the order releasing him from active duty, however, show his rank and pay grade as Corporal E-4, indicating that, although recommended, he had not been promoted to Sergeant.

2.  Nonetheless, his medical evaluation reports prepared one month prior to his release from active duty, the 9 June 1970 debriefing certificate, and the order published by his parent unit assigning him to a transfer point, show his rank as Sergeant E-5.      

3.  It is probable that the applicant was promoted to Sergeant E-5, but that the order reflecting his promotion did not make its way into his OMPF prior to his release from active duty; consequently, those persons responsible for publishing his separation order and preparing his DD Form 214 had no way of knowing that he was promoted, and consequently, prepared those documents showing his rank as Corporal, pay grade E-4.
  
4.  The applicant's contention that he was promoted to Sergeant E-5 prior to his release from active duty is credible, notwithstanding the lack of any promotion order.  Any doubt should be resolved in his favor.

5.   Correcting the applicant's records to show that he was promoted to Sergeant, requires a date of rank for that grade.  Since evidence is lacking concerning his promotion date, an arbitrary date must be established.  The earliest dated documents showing his rank as Sergeant E-5 are the above-mentioned medical reports, dated 21 May 1970.  Consequently, it would be appropriate to use that date as his date of rank as a Sergeant, pay grade E-5.

6.  Therefore, the applicant's 12 June 1970 DD Form 214 should be corrected to show that the applicant was released from active duty in the rank and pay grade of Sergeant E-5 with a date of rank of 21 May 1970.   

BOARD VOTE:

__RJW__  ___MHM_  __RLD __  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant was released from active duty on 12 June 1970 in the rank and pay grade of Sergeant E-5 with a date of rank of 21 May 1970. 

		__Raymond J. Wagner__
		        CHAIRPERSON

INDEX

CASE ID	AR2003091020	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040219	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.