APPLICANT REQUESTS:  In effect, that he be promoted on the retired list to the pay grade of E-9.  He states, in effect, that he submitted his request for retirement in May 1976, which was approved in July 1976.  However, he entered the secondary zone of consideration for promotion to the pay grade of E-8 in January 1976.  He goes on to state that when he submitted his promotion packet in October 1976 for consideration by the promotion board, he indicated that he had become eligible for consideration in the secondary zone as of January 1976.  He further states that the promotion board inadvertently overlooked him because he was not placed on the promotion list in the secondary zone and he never received any response to his comments on his promotion packet.  Therefore, he should be promoted to the pay grade of E-8 effective January 1976 and subsequently promoted to the pay grade of E-9.  He goes on to state that he trusts the system because he knows it works and that someone will straighten out this obvious error.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

On 26 May 1976, while serving in the pay grade of E-7 at Madigan Army Medical Center, Tacoma, Washington, the applicant submitted an application for voluntary retirement based on length of service.  His request was approved on 17 June 1976 for retirement on 1 November 1976.

Accordingly, the applicant was honorably released from active duty on 31 October 1976 and placed on the Retired list effective 1 November 1976.  He had served 20 years and 10 days of total active service.

Army Regulation 600-200, in effect at the time, prescribed the policies and procedures for selection and promotion of enlisted personnel to the pay grades of E-7, E-8, and E-9 under the centralized promotion system.  It stated, in pertinent part, that eligibility for promotion consideration to the pay grades of E-7 through E-9 was based on the date of rank and that in order to be eligible for inclusion in the zone of consideration, the individual concerned must have been serving on active duty in an enlisted status on the convening date of the board and must not have had an approved retirement before the convening date of the board. Furthermore, promotion reconsideration would only be granted (if appropriate) to soldiers who were not selected from the primary zone of consideration.  Soldiers who were considered in a secondary zone would not be eligible for promotion reconsideration.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 1 November 1976, the date of retirement.  The time for the applicant to file a request for correction of any error or injustice expired on 1 November 1979.

The application is dated 26 May 1994 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

                      EXCUSE FAILURE TO TIMELY FILE

                      GRANT FORMAL HEARING

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director