RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           12 May 2005
      DOCKET NUMBER:  AR20040006031


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 he be promoted to the next
higher grade.

2.  The applicant states, in effect, that while stationed at Fort Riley,
Kansas, he was told when he received orders for the Republic of Vietnam
(RVN) that he was due for a promotion.  However, he would have to wait
until he got to the RVN and the orders would be there before too long.  He
states that after he got to the RVN, he never was promoted and he believes
he should be promoted now based on his conduct and efficiency

3.  The applicant provides a copy of his separation document (DD Form 214)
and his Enlisted Qualification Record (DA Form 20) in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 16 July 1971.  The application submitted in this case is
dated
15 August 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 24 February 1969.  He was trained in, awarded and
served in military occupational specialty (MOS) 36K (Wireman).

4.  The applicant’s DA Form 20 shows, in Item 33 (Appointments and
Reductions) that he was promoted to private first class (PFC) on 30
December 1969 and that this is the highest rank he attained while serving
on active duty.  Item 38 (Record of Assignments) shows he served at Fort
Riley through
19 March 1970, at which time he departed for the RVN.  He served in the RVN
from 27 May 1970 through 14 April 1971.  Item 38 also shows that he
received “Excellent” conduct and efficiency ratings at each of his active
duty assignments.

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
documents that indicate the applicant was ever recommended for, or promoted
to a rank above PFC.  His MPRJ does contain a separation packet that
confirms he was processed for separation for unsuitability based on a
character and behavior disorder.

6.  The MPRJ also contains a psychiatric report that shows the applicant
was diagnosed with a passive-dependency reaction with passive aggressive
features, chronic, moderate; manifested by drug abuse and addiction, peer
dependency, depression, manipulativeness, excessive drinking, difficulty
with authority figures, submissive demeanor; precipitating stress, minimal,
routine military duty; pre-dependency, poor ability to express feelings
especially anger, degree of impairment for further military duty marked.

7.  On 24 June 1971, the unit commander notified the applicant of his
intent to recommend his separation under the provisions of Army Regulation
635-212, by reason of unsuitability.  The commander cited the psychiatric
diagnosis as the basis for taking the action.

8.  On 25 June 1971, the applicant consulted with legal counsel and after
being advised of the basis for the contemplated separation action, its
effects and of the rights available to him, he waived consideration of his
case by a board of officers and personal appearance before a board of
officers.  He also waived representation by counsel and elected not to
submit a statement in his own behalf.

9.  On 13 July 1971, the separation authority approved the separation
action on the applicant and directed that he receive a general, under
honorable conditions discharge.  On 16 July 1971, the applicant was
discharged accordingly.  The DD Form 214 he was issued confirms he held the
rank of PFC on the date of his discharge.

10.  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.  The promotion regulation
established the time in grade and time in service requirements for
appointment to 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 he was told he would be promoted while
he was serving at Fort Riley and as a result should be promoted at this
time was carefully considered.  However, there is insufficient evidence to
support this claim.

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

3.  The evidence of record in this case provides no indication that the
applicant was ever recommended for, or promoted to a rank above PFC 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 E-
4, there is an insufficient evidentiary basis to support granting the
requested relief.

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 16 July 1971.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
15 July 1974.  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

___RJW_  ___BJE__  __LMD__  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.




            ____Raymond J. Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040006031                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/19                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1971/07/16                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unsuitability                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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