RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 April 2005
      DOCKET NUMBER:  AR200400046745


      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. Karen A. Heinz                |     |Member               |
|     |Mr. Lawrence Foster               |     |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 record be corrected to show
his rank and pay grade as specialist/E-4 (SPC/E-4).

2.  The applicant states, in effect, that under the governing Army
regulations, he should have been promoted to private/E-2 (PV2/E-2) after
completing basic combat training (BCT), to private first class/E-3 (PFC/E-
3) after completing advanced individual training (AIT) and to SPC/E-4 six
months later.

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 10 October 1969.  The application submitted in this case
is dated
23 July 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.  Incorporated herein by reference are military records which were
summarized by the Army Board for Correction of Military Records (ABCMR) in
Docket Number AC84-03273 on 12 March 1986, which documents the Board’s
consideration of the applicant’s request for a disability retirement.

4.  The applicant’s record shows that he enlisted in the Regular Army and
entered active duty on 26 September 1968.  He completed BCT at Fort
Benning, Georgia and AIT at Fort Benjamin Harrison, Indiana.
5.  On 26 January 1969, while still attending AIT, the applicant was
advanced to the rank and pay grade of PV2/E-2.  Upon completion of
training, he was placed on orders for the Republic of Vietnam (RVN) and
departed on leave.

6.  Prior to reporting for movement to the RVN, the applicant was
hospitalized at Keesler Air Force Base on 7 April 1969.  His
hospitalization was based on the request of his grandmother, who indicated
that he had a mental problem for two years.  The applicant was diagnosed
with a disabling condition that existed prior to his entry into service
(EPTS) and his separation was recommended by a Physical Evaluation Board
(PEB).

7.  On 10 October 1969, the applicant was honorably discharged under the
provisions of chapter 9, Army Regulation 635-40, by reason of EPTS physical
disability, PEB.  The separation document (DD Form 214) he was issued at
the time confirms he held the rank and pay grade of PV2/E-2 and that he had
completed a total of 1 year and 15 days of active military service.

8.  The applicant’s record contains no orders or documentation indicating
that he was ever recommended for, or promoted to a rank and pay grade above

PV2/E-2 by the proper promotion authority while he was serving on active
duty.

9.  Army Regulation 600-200, in effect at the time, prescribed the
policies, responsibilities and procedures pertaining to career management
of Army enlisted personnel.  Chapter 7 provided the Army’s promotion policy
and granted company level unit commanders the authority to promote
individuals to the grades of E-4 and below.

10.  The promotion regulation stipulated that normal advancement to PV2/E-
2, unless prevented by the commander, would be accomplished by the
personnel records custodian at the time an individual completed four months
of service for pay purposes.

11.  The promotion regulation also allowed for advancement to PFC/E-3 by
the unit commander after an individual completed four months of service in
the rank and pay grade of PV2/E-2.  The regulation also established the
time in grade and time in service requirements for appointment to SPC/E-4
as six months in the pay grade of E-3 and one year in service.  Periodic
quota allocations were also provided for promotions to the grades of E-4
through E-6.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the governing Army regulation provided
for his automatic promotion to PFC/E-3 after completing AIT and to SPC/E-4
six months later was carefully considered.  However, there is insufficient
evidence to support this claim.

2.  The regulation in effect at the time provided for normal advancement to
PV2/E-2 after four months in service.  The evidence of record confirms the
applicant’s promotion to this rank and pay grade was accomplished on
26 January 1969, in accordance with the governing regulation.

3.  Although the regulation in effect at the time allowed for the normal
advancement to PFC/E-3 after an individual completed four months of service
in the grade E-2, promotion was not automatic and required approval of the
unit commander.  The regulation also allowed for advancement to SPC/E-4
after six months time in grade as a PFC/E-3 and one year of service.
However, promotion to this rank and pay grade also required unit commander
approval and compliance with established quotas.

4.  The evidence of record in this case provides no indication that the
applicant was ever recommended for, or promoted to a rank and pay grade
above PV2/E-2 by the proper promotion authority while he was serving on
active duty.  As a result, given the regulation did not provide for
automatic promotion to PFC/E-3 and/or SPC/E-4, there is an insufficient
evidentiary basis to support granting the requested relief.

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 10 October 1969.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 9 October 1972.  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

___MM__  ___LF  __  ___KAH _  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                 |AR20040004675                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/26                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/10/10                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |EPTS Disability                         |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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