RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         09 DECEMBER 2004
      DOCKET NUMBER:  AR2004105260


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. Michael Flynn                 |     |Member               |

      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, in effect, that his 1983 separation document be
corrected to show that he was separated in pay grade E-5.

2.  The applicant states that he “passed” the promotion board and that
while waiting to be promoted he was appointed as an acting sergeant on 27
October 1982.  He states that because he passed the promotion board and was
appointed as an acting sergeant “until everything became official” he is
requesting that he be permanently promoted to pay grade E-5.

3.  The applicant provides a copy of the October 1982 document appointing
him as an acting sergeant.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 18 January 1983.  The application submitted in this case
is dated
28 February 2004.

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.  The applicant entered active duty on 29 January 1979 and was promoted
to pay grade E-4 on 1 November 1980.

4.  In December 1981 he appeared before a promotion board and was
recommended for promotion to pay grade E-5.  In May 1982 his promotion
points were recomputed and as of December 1982 he held promotion list
status for promotion to pay grade E-5 with 703 points.

5.  On 27 October 1982, after his name was on the promotion standing list
for promotion to pay grade E-5, the applicant was “assigned…additional
duties” as an “acting sergeant” to perform duties as a noncommissioned
officer until officially relieved or released from appointment or
assignment.  The applicant was assigned to a signal unit in Germany at the
time of the appointment.

6.  In January 1983 the applicant was reassigned to Fort Dix, New Jersey
for the purpose of separation processing.  He was released from active
duty, in pay grade E-4, on 18 January 1983.  There is no indication that he
was promoted to pay grade E-5 prior to his separation.

7.  Army Regulation 600-200, in effect at the time, established the
policies and procedures for the promotion of enlisted personnel.  It stated
that promotion of active Army members to grades E-5 and E-6 were made
against promotion point cutoff scores.  Headquarters Department of the Army
determined the needs of the Army by grade and specialty and based on those
needs, established promotion point cutoff scores for promotions to the
grades of E-5 and E-6.

8.  That same regulation noted that Soldiers promoted to pay grade E-5
required at least 3 months remaining on the enlistment contract in order to
be promoted.

9.  Army Regulation 600-200 also provided for the appointment of acting
noncommissioned officers (NCOs) by company, troop, battery, or separated
detachment commanders of qualified Solders to serve in vacant positions in
their units.  The regulation stated that acting NCOs were not entitled to
pay and allowances for the higher grade and that service in the acting
grade would not be credited as time in a higher grade for promotion
purposes.

10.  Army Regulation 635-5, which established the policies and procedures
for the preparation and distribution of separation document, stated that an
individual’s active duty grade or rank and pay grade would be reflected on
the separation document.

DISCUSSION AND CONCLUSIONS:

1.  While the evidence does confirm that the applicant was on a promotion
standing list for promotion to pay grade E-5 and that he had been appointed
as an acting sergeant, the appointment would have expired when the
applicant was reassigned from his unit in Germany to Fort Dix.

2.  There is no evidence that the applicant was promoted to pay grade E-5
and as such, no basis to correct his separation document.  His separation
document reflects his appropriate grade at the time of his separation

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 January 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
17 January 1986.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM__  ___LS___  ___MF __  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.




                                  _____  Melvin Meyer_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004105260                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041209                                |
|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.       |110.00                                  |
|2.                      |131.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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