RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 February 2005
      DOCKET NUMBER:  AR20040000555


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr., Larry J. Olson               |     |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, promotion to staff sergeant/E-6
(SSG/E-6)

2.  The applicant states, in effect, that sometime between June and
September 1971, he was promoted to SSG/E-6, but never received the orders.
He claims that the officers and noncommissioned officers (NCOs) of his
chain of command paid no attention to his repeated requests to check on the
promotion orders and every request he made to his first sergeant (1SG) was
ignored.  He claims the 1SG buried his requests because of his racial
prejudice.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 12 December 1975.  The application submitted in this case
is dated 4 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’s record shows that he was inducted into the Army and
initially entered active duty on 29 November 1965.  He was trained in and
awarded military occupational specialty (MOS) 11B (Infantryman).

4.  On 17 September 1967, the applicant was honorably discharged for the
purpose of immediate reenlistment in the Regular Army, and on 18 September
1967, he enlisted in the RA for four years.  On 25 September 1969, he was
honorably discharged for the purpose of immediate reenlistment and on
26 September 1969, he reenlisted for six years.
5.  The applicant’s Personnel Qualification Record (PQR), DA Form 2-1
shows, in Item 18 (Appointments and Reductions), that the applicant was
promoted to the rank of SSG/E-6 on 24 October 1968.  It also shows that on
22 April 1970, he was reduced to specialist four/E-4 (SP4/E-4) for cause,
and on 28 July 1970, he was promoted to sergeant/E-5 (SGT/E-5).  His PQR
(DA Form 2), dated 21 July 1975, contains no entry in Item 22 (Promotable
MOS).

6.  A DA Form 20B (Record of Court-Martial Conviction) on file confirms
that on 22 April 1970, a special court-martial found the applicant guilty
of two specifications of striking other Soldiers and one specification of
threatening another Soldier.  The resultant sentence included a reduction
to SP4/E-4.

7.  The applicant’s Military Personnel Records Jacket contains a copy of a
promotion recommendation, dated 1 May 1972, in which the applicant’s unit
commander recommended him for promotion to SSG/E-6.

8.  The MPRJ also contains a copy of an endorsement, dated 19 May 1972, in
which the applicant’s command was advised that the applicant’s records
indicated he had not completed high school, which was an unwaivable
requirement for promotion to SSG/E-6.

9.  An endorsement on file in the MPRJ, dated 25 May 1972, contains the
unit commander’s confirmation that the applicant was advised of the high
school completion requirement for promotion to SSG/E-6, and on how to set
up an appointment with the education center to complete his high school
general education development (GED) equivalency.

10.  The applicant’s DA Form 2-1 shows he completed his high school GED
sometime in 1972, but the MPRJ contains no indication he was again
recommended for promotion to SSG/E-6 subsequent to completing this
requirement, or that he was ever promoted to SSG/E-6 by proper authority
prior to his separation from active duty.

11.  On 12 December 1975, the applicant was honorably discharged, in the
rank and pay grade of sergeant/E-5 (SGT/E-5), after completing a total of 8
years,
1 month and 7 days of active military service.  The applicant authenticated
this document with his signature.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he should have been promoted to SSG/E-6
sometime between 1971 and 1972 was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The applicant’s record confirms he held the rank and pay grade of SGT/E-
5 on the date of his separation from active duty.  Although it appears the
applicant’s unit commander recommended him for promotion in May 1972, his
record shows he was ineligible for promotion at that time because he did
not have a high school diploma or GED.

3.  The applicant’s MPRJ contains no documents or orders that indicate he
was recommended for promotion to SSG/E-6 subsequent to May 1972, or that he
was promoted to that rank and pay grade prior to being separated on 12
December 1975.  Further, his DA Form 2 does not contain an entry in Item
22, which indicates he was not on a Department of the Army promotion
standing list at that time.

4.  The applicant’s DD Form 214 clearly shows he held the rank and pay
grade of SGT/E-5, on the date of his final separation, 12 December 1975.
The applicant authenticated this separation document with his signature,
thereby verifying that the information it contained, to include his rank
and pay grade, was correct at the time the document was prepared and
issued.  Therefore, there is an insufficient evidentiary basis to support
granting the requested relief at this late date.

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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 December 1975.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 11 December 1978.  However, he 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

___MHM_  ___LJO _  __LMB __  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 H. Meyer _____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000555                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/03                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1975/12/12                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |131.0900                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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