RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 February 2004
      DOCKET NUMBER:   AR2003091359


      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. Carl W. S. Chun               |     |Director             |
|     |Mr. Edmund P. Mercanti            |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Arthur A. Omartian            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Mae M. Bullock                |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be promoted to pay grade E-8.

2.  The applicant states that prior to his retirement on 1 January 1980, a
promotion board recommended his promotion with a sequence number of 0017.
However, the promotion list wasn’t released until after he retired.  He
contends that if he had known that he had been selected for promotion, he
would have withdrawn his retirement.  He outlines the highlights of his
military career, and concludes that he has earned and deserves this
promotion.

3.  The applicant provides a newspaper article showing that he was selected
for promotion to pay grade E-8 by the 1980 selection board; a
recommendation for promotion dated 24 March 1970; a letter of appreciation
and commendation dated 31 January 1970; a recommendation for promotion
dated 8 July 1974; a recommendation for promotion dated 31 October 1975; a
recommendation for promotion dated 5 October 1976; his Personnel
Qualification Record; and his separation document.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on 31 December 1979.  The application submitted in this case is dated 15
May 2003.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  He was inducted and entered on active duty on 3 October 1956.  He was
promoted to pay grade E-4 and was honorably released from active duty at
the expiration of his term of service on 2 October 1958.

4.  He enlisted in the Regular Army on 4 December 1958, served continuously
through reenlistments, and was promoted to pay grade E-7 on 15 September
1967.  He served three tours in Vietnam, one tour in Germany, and one tour
in Korea.

5.  On 31 December 1979, the applicant was honorably discharged and placed
on the Retired List the following day for years of service.

6.  Army Regulation 600-200, Enlisted Personnel Management System, in
effect at the time, paragraph 7-42c, states that soldiers promoted to
grades E-7, E-8 and E-9 incur a 2-year service obligation.  Paragraph 7-40
of this regulation states that the promotion board results will be
published by command letter.

DISCUSSION AND CONCLUSIONS:

1.  While it is unfortunate that the promotion board results were released
after the applicant was retired, his retirement precluded his promotion in
the Regular Army.

2.  Promotion lists are considered “close hold” until the results of the
promotion board are published in a command letter.  There is no error or
injustice in that practice.

3.  In addition, the fact that the applicant would have had to remain on
active duty two years after the effective date of his promotion is also
considered.  There is no way to know with any certainty at this late date
whether the applicant would have accepted a 2-year service obligation to be
promoted to pay grade E-8.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 December 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 December 1982.  However, the applicant did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___aao___  ____jtm_  ___mmb_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            _________Arthur A. Omartian________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091359                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040226                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          | DENY                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |