RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           5 April 2005
      DOCKET NUMBER:  AR20040003398


      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. Mark D. Manning               |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Ms. Jeanette McCants              |     |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 in 1991, while stationed in
Korea, he requested to go before the promotion selection board to compete
for promotion to SSG/E-6.  He claims that he was granted permission to go
before the promotion selection board by his immediate supervisors, but one
week prior to the promotion selection board convening, the sergeant major
(SGM) in charge unjustly removed him from the consideration list.

3.  The applicant provides a self-authored statement and separation
document (DD Form 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 10 June 1993.  The application submitted in this case is
dated
22 June 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 limitations 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 enlisted in the Regular Army and
entered active duty on 6 September 1985.  He was trained in, awarded and
served in military occupational specialty (MOS) 11M (Fighting Vehicle
Infantryman).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments and Reductions), that he was promoted to sergeant/E-5
(SGT/E-5) on 1 September 1990 and that this is the highest rank he attained
while serving on active duty.

5.  The applicant’s Personnel Qualification Record-Part I (DA Forms 2),
dated
24 November 1992, contains no entries in Section II (Qualification Data)
that would indicate he had been selected for, or placed on the promotion
standing list for SSG/E-6.

6.  United States Army Total Personnel Command (PERSCOM) Orders Number 097-
4, dated 21 May 1993, authorized the applicant’s release from active duty
(REFRAD) due to physical disability on 10 June 1993, and his placement on
the Temporary Disability Retired List (TDRL) on 11 June 1993.  These orders
also stipulated that the applicant’s retired grade of rank would be SGT/E-
5.

7.  On 10 June 1993, the applicant was REFRAD after completing a total of
7 years, 9 months and 5 days of active military service.  The DD Form 214
he was issued at that time confirms he held the rank of SGT/E-5.  The
applicant authenticated this document with his signature in Item 21
(Signature of Person Being Separated).

8.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of a
promotion point worksheet, or of any other documents or orders indicating
that he was ever recommended for promotion by any members of his chain of
command, that he was ever selected for promotion by a duly constituted
promotion selection board, or that he was ever placed on a promotion
standing list.  Further, there is no evidence to suggest he was ever
promoted to a rank and pay grade above SGT/E-5 while he was serving on
active duty.

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
prescribes the Army’s promotion policy.  Chapter 3 contains the policies
and procedures for semi-centralized promotions to SGT/E-5 and SSG/E-6.  The
regulation indicates that board appearance, promotion point calculation,
promotion list maintenance and the final execution of the promotions occur
in the field.  It further states that Headquarters, Department of the Army
(HQDA) establishes monthly promotion cutoff scores and maintains the
monthly SGT/SSG promotion selection by-name list.  Promotions are made
based on the needs of the Army by grade and MOS.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was unjustly denied the opportunity
to appear before a promotion selection board to compete for promotion to
SSG/E-6 was carefully considered.  However, there is insufficient evidence
to support this claim.

2.  The evidence of record confirms the applicant was promoted to SGT/E-5
on
1 September 1990, and that this is the highest rank he attained and in
which he served while on active duty.  This is evidenced by entries on his
DA Form 2-1 and the absence of promotion qualification entries on his DA
Form 2.  Further, the applicant’s MPRJ is void of any documents indicating
that he was ever recommended for, selected for, or promoted to a rank and
pay grade above SGT/E-5 during his active duty tenure.

3.  Further, there is no indication the applicant ever raised the issue of
his promotion to SSG/E-6 while he remained on active duty, or in the over
10 years since his separation.  Given the passage of time and lack of any
clear and convincing evidence that he was unjustly denied promotion
consideration, there is an insufficient evidentiary basis to grant the
requested relief in this case.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 June 1993.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 9
June 1996.  However, he failed to 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

___MDM_  ___TEO_  ___JRM_  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.




            ____Mark D. Manning____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003398                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/05                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1993/06/10                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |TDRL                                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]