APPLICANT REQUESTS: Retroactive promotion to the pay grade of E-5 with all pay, allowances, and interest that would have accrued. He states that he was guaranteed a promotion to the pay grade of E-5 within 6 weeks of his enlistment. However, his promotion to pay grade E-5 was denied and he was unjustly promoted to the pay grade of E-4 instead.
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:
The applicant enlisted in the pay grade of E-3 on 27 June 1974 for a period of 3 years under the Army Stripes for Skills and Army Bandsman enlistment options. As part of his enlistment contract, the applicant signed an addendum to his enlistment contract (DA Form 3286-R) which indicates that he understood that his civilian skills as a trombone player would be recognized by the Army for the purpose of enlistment and that he would be considered for accelerated promotion based upon his demonstrated skill and proficiency. He also acknowledged that he understood that promotion was not automatic, but dependent on his demonstration of proficiency and furthermore that his enlistment contract would not be breached if he failed promotion.
He successfully completed his training and was transferred to Fort Polk, Louisiana. He was promoted to the pay grade of E-4 on 14 May 1975. The instrument promoting the applicant to the pay grade of E-4 is no longer present in the applicants records due to his being subsequently promoted to the pay grade of E-5 on 1 November 1979, which precipitated the removal of promotion documents pertaining to his previous promotion (only current promotion documents are maintained in the military personnel records jacket).
After completing his assignment at Fort Polk, the applicant was transferred to Korea on 29 April 1976 where he served until he reenlisted for assignment to Fort Sheridan, Illinois, where he was promoted to the pay grade of E-5.
A review of the applicants records reveals that nonjudicial punishment was imposed against the applicant on two occasions, once while at Fort Polk and once while at Fort Sheridan. In both instances a suspended reduction in grade was imposed. There is no evidence to show that the punishments were ever vacated.
On 28 March 1980 he was honorably released from active duty and transferred to the USAR Control Group (Reinforcement). He had served 5 years, 9 months, and 2 days of total active service. He was honorably discharged from the USAR on 26 June 1980.
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 26 June 1980, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 26 June 1983.
The application is dated 21 December 1993 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
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