IN THE CASE OF: BOARD DATE: 29 October 2009 DOCKET NUMBER: AR20090004578 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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his rank as sergeant (SGT) instead of specialist five (SP5). 2. The applicant states he was a Light Weapons Infantryman, military occupational specialty (MOS) 11B4O/squad leader. 3. The applicant provides no additional documentary evidence in support of this application. 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 6 June 1969 and upon completion of initial entry training was awarded military occupational specialty 11B (Light Weapons Infantryman). He served in Vietnam from 31 October 1969 to 17 August 1970. 3. Headquarters, 1st Cavalry Division (Airmobile), Special Orders Number 177, dated 26 June 1970, promoted the applicant to SGT and awarded him MOS 11B4O. 4. Department of the Air Force, 377th Combat Support Group (Pacific Air Force), Special Order TF-720, dated 31 July 1970, shows the applicant was directed to proceed in a patient status from the 21st Aeromedical Staging Flight to the 249th General Hospital for further medical treatment and or disposition. These orders show the applicant's rank as SGT. 5. Headquarters, Fort Sam Houston, Texas, Special Orders Number 12, dated 18 January 1971, relieved the applicant from active duty effective 19 January 1971. These orders show the applicant's rank as SP5. 6. Item 5a (Grade, Rate or Rank) of the applicant's DD Form 214 shows his rank as SP5. 7. Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time of the applicant's discharge, provided the Army's enlisted personnel management policy. Chapter 2, section X, provided the policy for lateral appointments and provided provisions for the lateral appointment of an SP5 to SGT. Section X, paragraph 2-41b, of this regulation states that noncommissioned officers may be laterally appointed with their consent, provided they are qualified for specialist grade and specialists are authorized for that grade by Army Regulation 611-201 (Enlisted MOS Classification and Structure) in the MOS in which appointment is to be made. Consent of the individual is not required if conversion to specialist status is directed by Headquarters, Department of the Army. 8. Army Regulation 611-201, in effect at the time, provided standards of grade authorization for enlisted MOS. The standards of grade authorization for MOS 11B did not authorize infantrymen in specialist grades above pay grade E-4. Pay grades E-5 and above were all noncommissioned officers (sergeants). 9. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. In pertinent part, it states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his records should be corrected to show his rank as SGT instead of SP5. 2. Orders show the applicant was promoted to SGT and there is no evidence which shows he was laterally appointed to SP5 prior to his separation from active duty. Additionally, the regulation in effect at the time did not authorize infantrymen in specialist grades above pay grade E-4. Therefore, his DD Form 214 which shows his rank as SP5 is in error and should be corrected to show he separated in the rank of SGT. BOARD VOTE: ___X____ ___X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 5a of the applicant's DD Form 214 to show his rank as SGT. ___________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) AR20090004578 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090004578 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1