IN THE CASE OF: BOARD DATE: 1 March 2011 DOCKET NUMBER: AR20100021162 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, in effect, advancement to master sergeant (MSG)/E-8 on the retired list under the provisions of Title 10, U.S. Code, Section 3964. 2. The applicant states his command did not inform him he was promoted to MSG/E-8. They wanted him to be discharged so they could give the MSG/E-8 position to another Soldier. 3. The applicant provides self-authored statements and documentation he states is his promotion packet, to which he has added documents the promotion board did not see. 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. Following a period of service in the U.S. Navy, the applicant enlisted in the U.S. Army Reserve (USAR) on 23 May 1975. He entered active duty in the Active Guard Reserve (AGR) program on 30 September 1980, where he served until his honorable retirement for physical disability on 7 November 1990. He retired in the rank/grade of sergeant first class (SFC)/E-7. 3. The record is void of documentation showing he was considered or selected for promotion to MSG/E-8. 4. In a self-authored statement, he states at the time of his discharge he held the only position of MSG/E-8 in his unit. While his retirement for disability was being processed, his promotion came through to his commander, but it was kept a secret from him because the chain of command wanted to give the promotion to another Soldier. This did not happen. He also states the MSG/E-8 position he filled was withdrawn from the unit, removing any possibility of promotion. 5. Title 10, U.S. Code, section 3964 applies to warrant officers of the Army; enlisted members of the Regular Army; and reserve enlisted members of the Army who, at the time of retirement, are serving on active duty. It states each retired member of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army. DISCUSSION AND CONCLUSIONS: 1. The applicant states he was selected for promotion to MSG/E-8 and was serving in a MSG/E-8 position. A careful review of the available records revealed no documentary evidence to support either statement. Nor is there any documentary evidence to support his statement that his chain of command withheld his promotion. 2. In the absence of evidence showing he was selected for promotion to MSG/E-8 and served successfully in that rank and grade prior to his discharge for disability, there is no basis for granting the requested relief. 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 that 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) AR20100021162 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100021162 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1