IN THE CASE OF: BOARD DATE: 17 May 2012 DOCKET NUMBER: AR20110023248 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 his record and DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his rank was specialist four/E-4 (SP4/E-4) at the time of his release from active duty (REFRAD). 2. The applicant states he should have been promoted to SP4/E-4 before he got out of the Army. 3. The applicant provides no documentary evidence in support of his application. 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 record shows the applicant enlisted in the Regular Army on 4 June 1980, and was trained in and awarded military occupational specialty (MOS) 76V (Materiel and Storage Handling Specialist). 3. The applicant’s DA Form 2 (Personnel Qualification Record-Part I), dated 20 February 1982, lists his rank as private first class/E-3 (PFC/E-3) in item 9 (Grade). His DA Form 2-1 (Personnel Qualification Record-Part II) shows, in item 18 (Appointments and Reductions), that he was advanced to PFC/E-3 on 1 April 1981, and that this is the highest rank he attained while serving on active duty. Item 33 shows the applicant last reviewed the DA Form 2-1 on 26 May 1983 during his separation processing. 4. The applicant’s Military Personnel Records Jacket (MPRJ) is void of documents or orders indicating he was ever recommended for or promoted to SP4/E-4 by proper authority while serving on active duty. All orders and documents on file in the MPRJ, dated subsequent to 1 April 1981, list his rank as PFC/E-3. This includes his separation orders issued on 27 May 1983, and the orders discharging him from the U.S. Army Reserve (USAR), dated 4 June 1986. 5. On 27 May 1983, the applicant was honorably REFRAD after completing 2 years, 11 months, and 24 days of active military service. The DD Form 214 he was issued at the time shows he held the rank and pay grade of PFC/E-3 in items 4a (Grade, Rate or Rank) and 4b (Pay Grade). 6. Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time, prescribed the policies for the management of enlisted personnel. Chapter 7 contained enlisted promotion policy. Section II provided guidance on advancement to pay grades E-2, E-3 and E-4. It stated, in pertinent part, that the time in grade requirement for promotion to SP4/E-4 without waiver was 6 months as an E-3 and that the time in service requirement without waiver was 24 months. The authority to promote or to withhold promotion rested with the unit commander. A promotion board while not required could be used by the commander and promotions to E-4 were limited by strength limitations established by Department of the Army (DA). DISCUSSION AND CONCLUSIONS: 1. The applicant’s request to correct his record and DD Form 214 to show his rank as SP4/E-4 has been carefully considered. However, there is insufficient evidence to support this claim. 2. By regulation, promotion to SP4/E-4 was not automatic and the authority to promote or withhold promotions rested with the unit commander. In addition, E-4 promotions had strength restrictions established by DA. The evidence of record contains no evidence and the applicant has failed to provide independent evidence that shows he was ever recommended for or promoted to SP4/E-4 by proper authority while serving on active duty. Therefore, absent any evidence that the applicant was improperly denied promotion, there is an insufficient evidentiary basis to support 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) AR20110023248 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110023248 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1