IN THE CASE OF: BOARD DATE: 9 September 2010 DOCKET NUMBER: AR20100009937 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 the rank and pay grade listed in items 5a (Grade, Rate or Rank) and 5b (Pay Grade) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show specialist five/E-5 (SP5/E-5). 2. The applicant states he was receiving E-5 pay at the time of his separation. 3. The applicant provides SP5/E-5 promotion orders and his DD Form 214 in support of his 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’s record shows he was inducted into the Army and entered active duty on 23 October 1968. It also shows he was trained in and awarded military occupational specialty (MOS) 67C (Helicopter Repairman). 3. The applicant’s DA Form 20 (Enlisted Qualification Record) contains an entry in item 33 (Appointments and Reductions) that shows he was promoted to the rank and pay grade of specialist four/E-4 (SP4/E-4) on 3 April 1969; and to SP5/E-5 on 17 March 1970. The SP5/E-5 entry is the last recorded in item 33 and there is no indication that he was reduced in rank after that date. 4. The applicant’s record also contains Headquarters, 223rd Aviation Battalion (Combat), APO San Francisco 96238 Special Orders Number 76, dated 27 March 1970. These orders promoted him to SP5/E-5, effective 17 March 1970. 5. The record also contains Headquarters, United States Army Personnel Center, Fort Lewis, Washington Special Orders Number 149, dated 29 May 1970. These orders directed the applicant’s release from active duty (REFRAD) on 29 May 1970. They list the applicant’s rank and pay grade as SP5/E-5 in the standard name line. 6. The applicant’s record also contains the following documents prepared during his separation processing, all dated 29 May 1970, that list his rank and pay grade as SP5/E-5: * DD Form 1407 (Dependent Medical Care and DD Form 1173 Statement) * DA Form 1811 (Physical and Mental Status On REFRAD) * DA Form 2376 (Notification to State Adjutants General REFRAD of Obligated Reservist). 7. On 29 May 1970, the applicant was honorably released from active duty after completing 1 year, 7 months, and 7 days of active military service. Items 5a and 5b of the DD Form 214 he was issued at the time lists his rank and pay grade as specialist four/E-4 (SP4/E-4). His date of rank is listed as 17 March 1970. 8. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It also establishes standardized policy for preparing and distributing the DD Form 214. The version of the regulation in effect at the time stated to list the rank and pay grade held upon separation in items 5a and 5b. It also identified the DA Form 20 and orders and documents in the record as the source records for these entries. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contention that the rank and pay grade listed in items 5a and 5b of his DD Form 214 should read SP5/E-5 has been carefully considered and found to have merit. 2. The applicant’s DA Form 20, orders and documents in his record confirm he was promoted to the rank and pay grade of SP5/E-5 on 17 March 1970, and that this is the rank he held on the date of his REFRAD. Therefore, it would be appropriate to correct items 5a and 5b of his DD Form 214 accordingly. 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 his DD Form 214 by deleting the current entries in items 5a and 5b and replacing them with the entries “Specialist Five” and “E-5”. _______ _ _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) AR20100009937 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100009937 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1