RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 January 2005
      DOCKET NUMBER:  AR20040000483


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Delia r. Trimble              |     |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 a letter from his wife, that he be retired
as a Staff Sergeant, E-6 with 20 years of service and back pay from 1 March
1985 to October 1990 and that he be awarded the Purple Heart and the Army
Commendation Medal (ARCOM).

2.  The applicant states, in a letter from his wife, that the Board, in
their 1989 action, left some issues unresolved.  First, the Deputy
Assistant Secretary agreed that, since the time had been so long between
his promotion error, that he would be retired as a Staff Sergeant with 20
years of service.  The Deputy Assistant Secretary also agreed that a
citation for the Purple Heart would be forthcoming for his courage as a
Criminal Investigation Command (CID) agent.  He and his partner were given
an order to do a special operation called Drugburst.  He was injured in
that operation when the driver of the tank he and his partner were riding
in with four other men drove off a mountain.  Because he had medical
training, he took charge of the situation and rescued two men from the tank
despite his injuries.  They said he would get a Purple Heart and an ARCOM
for that but the paperwork got lost.  He paid a price for being involved in
other drug busts.  He was run over and stabbed.  He was shot in 1990, while
he was on the Temporary Disability Retired List (TDRL), and still has the
bullet lodged in his spine.  The Army retired him with 20 years service and
a disability over 60 percent but now he asks for his promotion and awards.

3.  The applicant provides a letter of appreciation dated 29 September
1980; a   3-page E-5 promotion recommendation; his Certificate of
Retirement; a 1st endorsement dated 8 August 1989 from the Deputy Assistant
Secretary (Department of the Army Review Boards and Equal Employment
Opportunity Compliance and Complaints Review); and a 2 October 1989 letter
from the Chief, Physical Disability Branch.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states that there is no record of misconduct recorded in the
applicant's records.  Counsel notes that, while the injuries received by
the applicant were under heroic circumstances, a Purple Heart determination
is reserved during a time of war from the enemy.

2.  Counsel also stated that the applicant was the subject of a request for
promotion to E-5 in a letter dated 9 October 1984.  The letter stated, "SM
had been appointed the acting Sgt due to a slot vacancy in prior command…SM
met all requirements by the board at that appointment…SM was transferred to
new command and due to error, promotion was not awarded by the command."
3.  Counsel further states that it is reasonable to expect that a promotion
would have occurred in the case of the applicant had the error not been
made by the command to which he as transferred.  He was in all respects
qualified for promotion at the time of the written endorsements.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred in January 1998 (the date he states he was notified by
finance that (illegible) had not updated) or August 1998 (the date the
Board last considered an application from him that included a request for
promotion to Sergeant, E-5).  The application submitted in this case was
received on 27 April 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 requested correction of his records to show award of the
ARCOM.  There are no orders or other evidence authorizing award of this
decoration to the applicant.  In the absence of a proper award authority
for this decoration, the applicant may request award of the ARCOM under the
provisions of section 1130 of Title 10, U. S. Code.  He has been notified
by separate correspondence of the procedures for applying for this
decoration under section 1130 and, as a result, it will not be discussed
further in this Record of Proceedings.

4.  The applicant enlisted in the Regular Army on 26 April 1979.  He was
discharged on 22 May 1981 under the Expeditious Discharge Program.  He
later applied to the Army Discharge Review Board (ADRB) for a change in the
narrative reason for discharge.  He stated in his application that he
became an informant for CID for the prevention of drug trafficking within
the command (1st Battalion, 87th Infantry, Germany) and for his unit at the
request of his commander.  After a drug bust, his life was threatened.  He
was transferred out of the command awaiting transfer out of Germany.  While
at his new unit, he received an ARCOM and a letter of outstanding service.
His transfer paperwork was delayed.  His new company commander requested
his discharge.  He thought it was for the convenience of the Government so
he signed the paperwork.  He later found out it was for the Expeditious
Discharge Program.  The ADRB changed his narrative reason for discharge to
Secretarial Authority.
5.  The applicant reenlisted in the Regular Army on 16 July 1984.

6.  On 9 August 1984, the applicant's supervisor recommended him for
promotion to Sergeant, E-5.

7.   On 17 September 1984, the applicant's commander noted that an error
had been made, the applicant was not afforded the opportunity to be
presented before an E-5 selection board, and he should not be regarded in
fault for not meeting the criteria of the September 1984 E-5 selection
board.  The commander requested that action be initiated to allow him to
appear before the next scheduled E-5 selection board.

8.  On 9 October 1984, the applicant's commander forwarded a request for
waiver of time in service to the supporting personnel office.  The letter
"approved" and "recommended approval" of a waiver of time in service and
recommended promotion be effective 4 October 1984.  The letter also stated,
as noted by counsel, "SM had been appointed the acting Sgt due to a slot
vacancy in prior command…SM met all requirements by the board at that
appointment…SM was transferred to new command and due to error, promotion
was not awarded by the command."

9.  On 16 October 1984, the applicant, while undergoing an EEG
(electroencephalogram) for a complaint of headaches, suffered a grand mal
seizure.  He was hospitalized on 5 November 1984 and on 8 November 1984
suffered another grand mal seizure.  On 14 January 1985, a Medical
Evaluation Board (MEB) recommended he appear before a Physical Evaluation
Board (PEB).  On 31 January 1985, a PEB found the applicant to be
physically unfit due to an EPTS (existed prior to service) condition, not
service aggravated, and recommended his separation without disability
benefits.

10.  On 28 March 1985, the applicant was discharged for physical disability
without severance pay in pay grade E-4 after completing a total of 2 years
and  26 days of creditable active service.

11.  On 18 December 1985, the ABCMR corrected the applicant's records to
show that he was released from active duty on 28 March 1985 and placed on
the TDRL.  On 6 November 1987, after reviewing a TDRL reexamination, a PEB
found the applicant to be physically unfit and recommended he be separated
with severance pay.  On 30 December 1987, he was removed from the TDRL and
discharged because of permanent disability and a 20 percent disability
rating.

12.  On 12 July 1989, the ABCMR corrected the applicant's records to show
he was removed from the TDRL on 30 December 1987 and, effective 31 December
1987, permanently retired by reason of physical disability with a 50
percent disability rating in pay grade E-4.

13.  On 29 July 1998, the ABCMR denied the applicant's request that he be
awarded a total disability evaluation, that he be promoted to Sergeant, E-
5, and that he be awarded the ARCOM.

14.  Army Regulation 600-8-22 (Military Awards) states that the Purple
Heart is awarded for a wound sustained as a result of hostile action.
Substantiating evidence must be provided to verify that the wound was the
result of hostile action, the wound must have required treatment by a
medical officer, and the medical treatment must have been made a matter of
official record.

15.  Army Regulation 600-200 (Enlisted Personnel Management System),
chapter 7 at the time, prescribed policies and procedures for promotion of
enlisted personnel.  Paragraph 7-14 states that Headquarters, Department of
the Army (HQDA) will determine the needs of the Army by grade and military
occupational specialty (MOS).  Based on the need, the promotion point
cutoff scores for promotion are announced authorizing commanders to promote
the best qualified Soldiers Army-wide in each MOS.

16.  Army Regulation 600-200, paragraph 7-15 outlined the eligibility
requirements for promotion.  Paragraph 7-15d stated that Soldiers
recommended for promotion to pay grades E-5 and E-6 must appear for
selection board evaluation.  Paragraph 7-15i stated that Soldiers must be
physically qualified to perform duties of the MOS and grade to which
promoted.  Paragraph 7-22c stated that Soldiers would be eligible for
promotion on the first day of the third month following date of selection.
(Example:  A Soldier is recommended in January 1980.  He or she would
become eligible for promotion on 1 April 1980.)

DISCUSSION AND CONCLUSIONS:

1.  After several ABCMR actions, the applicant was permanently retired by
reason of physical disability effective 31 December 1987 in pay grade E-4
after completing 2 years and 26 days of creditable active service.  There
is no evidence of record and the applicant provides none that would justify
showing he retired with 20 years of service in October 1990.  The applicant
provides no evidence to show he was not paid all due retired pay from the
date the ABCMR initially placed him on the TDRL on 29 March 1985 (he was on
active duty from  1 through 28 March 1985) until the ABCMR permanently
retired him.

2.  The evidence shows that the applicant's supervisor recommended him for
promotion to Sergeant, E-5 on 9 August 1984.  It appears the soonest he
could have gone before a promotion selection board would have been
September 1984.  Through a unit error, he did not appear before a September
1984 promotion selection board and his commander requested action be
initiated to allow him to appear before the next scheduled E-5 selection
board.

3.  Despite the indication in the 9 October 1984 letter that the applicant
"met all requirements by the board at that appointment…and due to error,
promotion was not awarded by the command," there is no evidence to show
that he actually appeared before a selection board.  Promotions are not
made merely because a promotion selection board recommended a Soldier for
promotion.  The Soldier must further meet the HQDA-announced cutoff score
for promotion in his or her recommended MOS.  There is no evidence to show
that, had the applicant appeared before a selection board, he met the
cutoff score for promotion to Sergeant in his MOS.

4.  Had the applicant appeared before a September 1984 promotion selection
board and been recommended for promotion, and had he met the cutoff score
for promotion to Sergeant, the soonest he would have been eligible for
promotion would have been 1 December 1984.  However, it appears that on 1
December 1984 he would not have met the promotion eligibility requirement
to be physically qualified to perform duties of the MOS and grade to which
promoted.  He had his first grand mal seizure on 16 October 1984 and a
second seizure on 8 November 1984.

5.  The applicant did not meet the eligibility criteria for award of the
Purple Heart. The Purple Heart is awarded only for wounds received in
action against hostile forces.  The applicant's work as a CID informant are
commendatory; however, American Soldiers illegally involved in drug
use/abuse are not considered hostile forces for the purpose of award of the
Purple Heart.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration in August 1998 at the latest); therefore,
the time for the applicant to file a request for correction of any error or
injustice expired in August 2001).  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

__bpi___   __lcb___  __drt___  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.




            ___Bernard P. Ingold__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000483                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050119                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107.0015                                |
|2.                      |131.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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