PROCEEDINGS

	

	BOARD DATE:               29 April 1999
	DOCKET NUMBER:       AR1999025339

	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. Loren G. Harrell		Director	
	Mr. Wyman N. Bailey		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell 		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Christopher J. Prosser		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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that her late husband’s personnel and finance records be corrected to show the title sergeant and the pay difference of pay grade E-4 and E-5 be made available to her since her late husband served in pay grade E-5.   

3.  The spouse of the former service member (FSM) states that her husband served as a sergeant E-5 and should have been promoted to that grade and that she would like to be paid the difference in pay.   

4.  The FSM’s military records were lost.  Information herein was obtained from the FSM DA Form 20 (Personnel Record) and copies of orders submitted with the application.   

5.  The FSM served in the United Sates Army Reserves (USAR) from 24 November 1967 to 24 November 1969.  

6.  He enlisted in the Regular Army on 30 December 1969, in pay grade E-1/title Private.  He was promoted to pay grade E-2/title Private on 24 March 1970, completed basic and advanced individual training and was awarded the Military Occupational Specialty of 11B10 (Infantryman) on 22 May 1970.  

7.  He was promoted to pay grade E-3/title Private First-Class on 21 May 1970 and entered basic airborne training on 22 May 1970 at Fort Benning, Georgia.  He was awarded the Parachutist Badge on 10 June 1970 and was reassigned to the Republic of Vietnam on 6 August 1970.   

8.  He was promoted to pay grade E-4/title Specialist Four on 10 March 1971 and on that same date his title was changed to Corporal, also pay grade E-4.   

9.  On 24 June 1971, General Order Number 7110, Headquarters, 23d Infantry Division was published announcing the award of the Bronze Star Medal for meritorious achievement in connection with military operations against a hostile force for the period 29 January 1971 to 4 March 1971 showing the applicant’s title as sergeant.  

10.  On 10 July 1971, Permissive Orders for Out of Country Travel, were published authorizing the applicant to go on Rest and Relaxation from 29 July 1971 to 4 August 1971.  Those orders show the applicant’s title as sergeant.  

11.  He departed the RVN for the States on 23 September 1971 and was assigned to the principal duty position of Drill Sergeant at Fort Jackson, South Carolina, and was relieved from active duty and transferred to the USAR with assignment to Headquarters Company, 80th Division on 3 March 1972 in pay grade E-4.   

12.  He was assigned to the (Ready Reserves) Headquarters and Headquarters 391st Engineer Battalion (Combat) on 6 June 1972.  During his annual training he was awarded the MOS of 51N20 (Water Supply Specialist).  He was assigned to this unit until his transfer to the USAR Control Group (Reinforcement) on 23 July 1972 and held pay grade E-3 on 7 December 1972.   

13.  Title 37, U.S. Code, Section 3702, provides 6-year statute of limitations on monetary claims made against the Government.

CONCLUSIONS:

1.  It is not usual for a soldier holding the pay grade of E-4 with the title of Corporal to be appointed to the title of acting sergeant especially when a soldier shows the potential for leadership.   

2.  The available records clearly show that the applicant was never promoted to pay grade E-5.  In the absence of evidence to the contrary, it is presumed that the applicant was appointed as an acting sergeant because he displayed the traits of a good leader at the time of the publication of orders awarding him the Bronze Star Medal and his authorized permissive travel since the orders show his rank as sergeant.   

3.  The available records show he served well as a sergeant and should have been promoted to pay grade E-5 prior to his transfer to the USAR on 23 July 1972.   

4.  Even if the Board ruled it had found that the applicant should have been promoted at an earlier date, the Department of Defense Finance and Accounting Service could not pay monies based on Title 37 of the U. S. Code.   

5.  In view of the foregoing, and in the interest of justice, the applicant’s records should be corrected as recommended below.

RECOMMENDATION: 

That all of the Department of the Army records related to this case be corrected by showing that the FSM was promoted to pay grade E-5 effective on 22 July 1972 and issue a new DD Form 214 showing the FSM’s title as Sgt/E-5.   

BOARD VOTE:

_CJP  _ESC_  __ANC__   GRANT AS STATED IN RECOMMENDATION

______  ______  ______   GRANT FORMAL HEARING

_____  _______  _____     DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999025339	
SUFFIX		
RECON		
DATE BOARDED	19990429	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	129	
2.		
3.		
4.		
5.		
6.		

SFMR-RBR - 1st End (29 Apr 99, Docket Number AR1999025339)
SUBJECT:  ABCMR Proceedings

HQDA, OASA, Arlington, Virginia  22202-4508                          10 Jun 99

TO:  US Army Review Boards Agency Support Division - St. Louis
        ATTN:  SFMR-RBR-SL, 9700 Page Avenue, St. Louis, Missouri 63132-5200

1.  Under the authority of Title 10, United States Code, section 1552, the recommendation of the Army Board for Correction of Military Records is hereby approved, and it is directed that all of the Department of the Army records of the individual concerned be corrected as shown under Recommendation in the Proceedings of the Board in this case.

2.  Request necessary administrative action be taken to effect the correction of records as indicated no later than 16 August 1999.  Further, request that the individual concerned and counsel, if any, as well as any members of Congress who have shown interest be advised of the correction and that the Board for Correction of Military Records be furnished a copy of the correspondence.

BY ORDER OF THE SECRETARY OF THE ARMY:

Karl F. Schneider
Deputy Assistant Secretary
(Army Review Boards)

Encls 

CF:
Applicant
(   ) OMPF
(   ) SFMR/pmp
(   ) DFAS
(   ) Bailey