IN THE CASE OF:	  

		BOARD DATE:	    27 January 2011

		DOCKET NUMBER:  AR20100017125 


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, as the father of a former service member (FSM), his son's rank be corrected to show he was posthumously promoted to specialist (SPC).

2.  The applicant does not offer a statement.

3.  The applicant provides the following:

* DD Form 1300 (Report of Casualty), prepared 16 October 2006
* DA Form 4187 (Personnel Action), effective 27 August 2006
* Army Good Conduct Medal Certificate for the period 22 September 2005 to 27 August 2006

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 FSM enlisted in the Army on 22 September 2005.  He was trained in and awarded military occupational specialty 11B (Infantryman).

3.  The record shows he was:

	a.  assigned to Company C, 1st Battalion, 23rd Infantry, 3rd Stryker Brigade Combat Team, 4th Infantry Division, Fort Lewis, WA;

	b.  deployed in support of Operation Iraqi Freedom and assigned to Company C, 1st Battalion, 23rd Infantry Regiment, 2nd Brigade, 1st Armored Division; and

	c.  killed in action on 27 August 2006.

4.  Item 7 (Interested Persons/Remarks) of the Report of Casualty, dated 16 October 2006, shows "Private [FSM] was posthumously promoted to the rank of Private First Class, as of 27 August 2006, under provisions of Public Law 680, 77th Congress, as amended.  Pay grade shown in item 3d is that of E-2 since additional pay is not involved."

5.  The applicant provides a DA Form 4187 showing the FSM was advanced to SPC effective 27 August 2006.  This action is signed by the battalion commander, but is undated and unapproved.  Also provided is a copy of the FSM's Army Good Conduct Medal certificate for the period 22 September 2005 to 27 August 2006 which reads "Specialist [FSM]."

6.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support promotions and reductions.   Paragraph 1-24, states the posthumous promotion will be effected on a DD Form 1300 when items 50 and 51 are completed on the casualty report message issued according to Army Regulation 600-8-1 (Army Casualty Program).  Posthumous promotions will be accomplished by the Commander, U.S. Army Human Resources Command.  Further, Soldiers must have been officially recommended for promotion before the date of death.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the FSM's rank be corrected to show SPC.

2.  The record shows the FSM was posthumously promoted to private first class/
E-3 effective 27 August 2006.  Regulatory guidance states posthumous promotions will be executed on DD Form 1300 and accomplished by the Commander, U.S. Army Human Resources Command.  Because the DA Form 4187 showing the FSM was advanced to SPC effective 27 August 2006 and the Army Good Conduct Medal certificate showing the FSM's rank as SPC were both published by the FSM's unit, neither document can be considered an authoritative source for effecting a posthumous promotion.

3.  A posthumous promotion is an honorary promotion given to a Soldier who was officially recommended for promotion but unable to be promoted due to death.  In this case, the FSM could not have been on a recommended list for promotion to SPC given the fact that he held the rank of private/E-2 at the time of his death.

4.  Unfortunately, there is no basis to grant the requested relief, but this by no means diminishes the FSM's dedicated service and ultimate sacrifice made for a grateful Nation.

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 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)                                         AR20100017125



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ABCMR Record of Proceedings (cont)                                         AR20100017125



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