BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160004054 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160004054 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. BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160004054 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 award of the Army Good Conduct Medal and restoration of his rank to private first class (PFC), pay grade E-3, with entitlement to back pay and allowances. In addition, he requests advancement to pay grade E-4. 2. The applicant states: a. He was discharged as a private (PVT)/E-1 after 33 months of service. He was in the Army Security Agency, holding military occupational specialty (MOS) 056 (Postal Clerk). While stationed at Baumholder, Germany, he was 4 hours late returning from a 3-day pass due to an automobile accident. This incident occurred in late I959. The commanding officer heard his story and said it was understandable and not worth an Article 15, but required some action. He gave him one week of "hard labor," which in the Army Security Agency simply meant reporting every day for a week to the company charge of quarters. b. Some months later, he was transferred to a new post at Menwith Hill in Harrogate, England, where he was stationed for about a year. Near the end of his time there, the commanding officer called him in and informed him that a recent review of the Uniform Code of Military Justice (UCMJ) required any judicial action that included the words "hard labor" have an associated automatic reduction to the lowest pay grade and forfeiture of pay. The result was that during the last period of time he was in the Army, he got virtually no pay and upon discharge was not awarded the Good Conduct Medal. He believes this was an injustice that needs to be corrected, and any compensation should be reinstated and his discharge rank should be returned to E-3, if not E-4. 3. The applicant provides no additional evidence. 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 for a 3-year term on 5 May 1958. He completed advanced individual training at Fort Devens, MA, and was awarded MOS 059.10 (Radio Operator). He was promoted to private (PV2)/E-2 (Permanent (P)) on 5 September 1958. 3. On 12 January 1959, Company G, U.S. Army Training Regiment, Fort Devens published Orders Number 1 announcing his promotion to the temporary (T) rank/grade of PFC/E-3. 4. Following completion of MOS training, he was assigned to Headquarters, 11th U.S. Army Security Agency, Baumholder Field Station, Germany, around 24 March 1959. 5. On 13 November 1959, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 30 to 31 October 1960 and one specification of operating a vehicle in a reckless manner and causing an accident. The court sentenced him to 45 days of hard labor without confinement. 6. On 2 May 1960, Headquarters, 13th U.S. Army Security Agency Field Station, published Special Orders (SO) Number 47, awarding him Expert Marksmanship Qualification Badge with Rifle Bar (M-1). This order listed his rank/grade as PFC/E-3. 7. On 26 May 1960, Headquarters Company, 13th U.S. Army Security Agency Field Station, Germany, published Orders Number 26, appointing him to the rank/grade of PFC/E-3 (T), effective 26 May 1960 (amended to 27 May 1960). 8. On 30 May 1960, Headquarters Company, 13th U.S. Army Security Agency Field Station, Germany, published Orders Number 27, appointing him to the rank/grade of PFC/E-3 (P), effective 12 January 1959. 9. On 10 August 1960, Headquarters Company, 13th U.S. Army Security Agency Field Station, Germany, published Orders Number 40, revoking Orders Number 27, dated 30 May 1960, pertaining to the grade of PFC/E-3 (P). 10. Section I (Appointments, Promotions, or Reductions) of his DA Form 24 (Service Record) shows the following entries, citing the authority as Army Regulation (AR) 624-200 (Appointment and Reduction of Enlisted Personnel): * PV2/E-2 (P), 5 September 1958, AR 624-200, date of rank 5 September 1958 * PFC/E-3 (T), 12 January 1959, paragraph 18a, AR 624-200, date of rank 12 January 1959 * PVT/E-1 (P), 26 May 1960, paragraph 126e, Manual of Courts-Martial (MCM) 1951, and "Comp Gen B139988," dated 19 August 1959, date of rank 13 November 1959 * PV2/E-2 (P), 26 May 1960, AR 624-200, date of rank 28 December 1959 * PFC/E-3 (T), 27 May 1960, Orders Number 26, Headquarters Company, 13th U.S. Army Security Agency Field Station, date of rank 27 May 1960 11. Section 4 (Chronological Record of Military Service) of his DA Form 24 shows he received "excellent" conduct and efficiency ratings throughout his service with the exception of: * "Good" conduct rating from 24 March 1959 to 4 February 1960, while assigned to the 11th U.S. Army Security Agency Field Station, Germany * "Good" conduct rating from 7 February to 9 October 1960, while assigned to the 13th U.S. Army Security Agency Field Station, Germany * No rating for efficiency, from 7 February to 9 October 1960, while assigned to the 13th U.S. Army Security Agency Field Station, Germany 12. He was honorably released from active duty on 21 February 1961. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years, 9 months, and 17 days of active service. It also shows in: * Item 3a (Grade, Rate or Rank) – PFC (T), E-3 * Item 3b (Date of Rank) – 27 May 1960 * Item 26 (Decorations, Medals, Badges, Commendations, Citations and campaign Ribbons Awarded or Authorized) – N/A [Not Applicable] * Item 32 (Remarks) – continuation to item 3a "PVT (P)/E-2 Appointed 26 May 1960, date of rank 28 December 1959" 13. His records do not contain orders awarding him the Army Good Conduct Medal or advancing him to pay grade E-4. REFERENCES: 1. AR 600-65 (Awards), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year. a. A Soldier's conduct and efficiency ratings, including those pertinent to attendance at service schools, must have all been recorded as "excellent" or higher, except that ratings of "Unknown" for portions of the period under consideration, and service school efficiency (emphasis in the original) ratings of less than "excellent" entered prior to 3 March 1946, would not be disqualifying. b. Ratings of "Unknown" for portions of the period under consideration were not disqualifying. Service school efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 were not disqualifying. c. There must have been no convictions by court-martial. However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders. 2. AR 624-200 (Promotions, Demotions, and Reductions – Appointment and Reduction of Enlisted Personnel), in effect at the time, stated temporary appointment of enlisted personnel to all grades above E-3 will be announced in orders issued by the appointing authority. The regulation provided for the temporary appointment of enlisted personnel of the active Army against periodic temporary appointment quota allocations issued by Headquarters, Department of the Army. The regulation stated that control would be exercised by all appointment authorities to ensure that appointments did not exceed local pay grade vacancies, major command ceilings, or allotted quotas. 3. AR 624-200 was superseded by chapter 7 of AR 600-200 (Enlisted Personnel Management System), effective March 1965. Chapter 7 of AR 600-200 provided similar guidance as noted in AR 624-200. 4. AR 635-5 (Personnel Separations – Separation Forms), dated 11 January 1960, prescribed forms to be used in the separation of Army personnel. The regulation stated the DD Form 214 provides the individual with documentary evidence of his/her military service. Chapter 2 provided instructions for the preparation of the DD Form 214: * Item 3a, for enlisted personnel, enter grade in which serving at time of separation, indicating whether permanent or temporary * Item 3b, for enlisted personnel, enter date of rank for the grade shown in item 3a; if the date of rank is different from date of appointment, enter date of appointment in item 32 (Remarks); if the grade at time of separation is not permanent, the permanent grade, date of appointment, and date of rank, if different from the date of appointment, will be entered in item 32 * Item 32, if date of rank is different from the date of appointment in grade shown in item 3b, enter date of appointment; if grade as shown in item 3a is not permanent, enter permanent grade, date of appointment, and date of rank if different from date of appointment 5. Title 31, U. S. Code (USC), section 3702, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, USC, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. DISCUSSION: 1. With respect to the applicant's grade at the time of separation: a. The available evidence shows the applicant held the temporary rank/grade of PFC/E-3 at the time of separation on 21 February 1961. His DD Form 214 correctly reflects this rank/grade and date of rank, in items 3a and 3b respectively. b. The available evidence also shows the applicant was advanced to the permanent rank/grade of PFC/E-3; however, his chain of command revoked this permanent promotion. This means he reverted back to the temporary rank/grade of PFC/E-3. c. Since the grade shown in item 3a is not permanent, his permanent grade (E-2), date of appointment (26 May 1960), and date of rank (28 December 1959) are reflected in item 32 of his DD Form 214. d. During his period of service, the temporary appointment (advancement) of enlisted personnel was based on quota allocations issued by Headquarters, Department of the Army. Appointment authorities were to ensure that appointments did not exceed local pay grade vacancies, major command ceilings, or allotted quotas. As there are no orders advancing him to pay grade E-4 in his record, it appears his command did not have the quota required to advance him prior to his separation. 2. With respect to the Army Good Conduct Medal: a. Award of the Army Good Conduct Medal requires a Soldier's conduct and efficiency ratings, including those pertinent to attendance at service schools, must have all been recorded as "excellent" or higher. The applicant received a "good" conduct rating from 24 March 1959 to 4 February 1960, while assigned to the 11th U.S. Army Security Agency Field Station, Germany and a "good" conduct rating from 7 February 1960 to 9 October 1960, while assigned to the 13th U.S. Army Security Agency Field Station, Germany. b. Award of the Army Good Conduct Medal stipulates there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders. The applicant had derogatory information in the form of lost time (AWOL) and a court-martial conviction. Additionally, there are no orders in his file for this award. 3. With respect to the issue of "compensation," irrespective of the Barring Act, a service member claiming additional pay and allowances previously accrued but not paid, has the burden of proving that he/she was not paid the pay and allowances claimed. The claim is disallowed where government records necessary to either justify or refute it have been destroyed or become unavailable due to lapse of time, and there is no other documentation available from any source to establish the liability of the United States. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004054 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004054 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2