RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            15 SEPTEMBER 2005
      DOCKET NUMBER:   AR20040010787


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Eric Anderson                 |     |Member               |
|     |Ms. Carol Kornhoff                |     |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 the pay grade of E-8.

2.  The applicant states, in effect, that his first sergeant (1SG) was
prejudiced and very verbal about it.  He goes on to state that he was
selected to attend the Advanced Noncommissioned Officer Course (ANCOC) and
his 1SG contacted friends of his who worked at the Department of the Army
(DA) to tell them he did not want to attend the course, which was not true.
 When he (the applicant) contacted officials at DA, his efforts were
thwarted because it was his word against the 1SG’s and he was never allowed
to attend and was not promoted.  He continues by stating that had he
attended the course he would have been promoted to at least the pay grade
of E-8.  However, because of a prejudiced 1SG, his career was ended.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 August 1992.  The application submitted in this case is
dated 21 November 2004 and was received on 7 December 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.  He was born on 26 February 1949 and enlisted in Brooklyn, New York, on
16 September 1969 for a period of 3 years and for training as a field radio
mechanic.  He successfully completed his training, was transferred to
Vietnam on 24 July 1970, was advanced to the pay grade of E-4 on 14 January
1971, and departed Vietnam on 23 April 1971 for assignment to Fort Dix, New
Jersey, where he remained until he was honorably released from active duty
(REFRAD) on 20 March 1972 due to Secretarial Authority, as an exception to
policy.  He had served 2 years, 6 months and 5 days of total active
service.

4.  On 7 October 1974, he again enlisted in the Regular Army in Brooklyn,
New York, for a period of 3 years and for assignment to Fort Meade,
Maryland.  He was initially assigned to Fort Meade and subsequently
accepted an assignment to the Military Academy at West Point, New York.  He
was promoted to the pay grade of E-6 on 28 May 1978 in the military
occupational specialty (MOS) of 31V (tactical communications chief) and was
transferred to Germany on 25 July 1978.

5.  He remained on active duty through a series of continuous
reenlistments, attended and completed the basic noncommissioned officer
course (BNCOC) for MOS 31V at Fort Sill, Oklahoma, in October 1981, before
being assigned to an aviation battalion at Fort Lewis, Washington.  He was
awarded a Bachelor of Arts degree in administrative justice in 1983.

6.  On 30 August 1983, he reenlisted for a period of 6 years and attendance
at an Army Service School for training as a medium helicopter repairer.
However, he waived his reenlistment option for attendance at the service
school on 23 September 1983.

7.  In October 1983, he transferred to a military police company at Fort
Lewis for duty as a military policeman.  His first Noncommissioned Officer
Evaluation Report (NCOER) as a military policeman ended on September 1984
and he was rated by a platoon sergeant (E-7) and indorsed by his 1SG (the
1SG he accuses of being openly prejudiced).  Both his rater and endorser
gave him a score of 121 out of a possible 125 and both recommended him for
attendance at the ANCOC. He also received a Bachelor of Arts degree in
Criminal Justice in 1984.

8.  He departed Fort Lewis for assignment to Korea where he served 1 year
before returning back to Fort Lewis.  He served at Fort Lewis until 1988
when he was transferred to Germany.  He served in Germany until August 1991
when he was transferred to Fort Sam Houston, Texas.

9.  On 10 October 1991, he submitted his Voluntary Request for Retirement
due to length of service, to be effective 1 September 1992.  His request
was approved on 11 October 1991.

10.  On 31 August 1992, he was honorably REFRAD in the pay grade of E-6 and
was transferred to the Retired List effective 1 September 1992.  He had
served 20 years, 4 months and 29 days of total active service.

11.  A review of his Official Military Personnel File (OMPF) fails to show
that he ever attended or completed any military police related
noncommissioned officer education system (NCOES) courses after he was
reclassified as a military policeman.  The last entry on the applicant’s
records regarding promotions show that his records were forwarded to the E-
7 promotion selection board on 10 July 1991.  However, had he been
selected, he would have been ineligible to accept the promotion due to his
approved retirement.

12.  Army Regulation 600-200, in effect at the time, served as the
authority for the conduct of selection boards.  It provides, in pertinent
part, that selection board members may not record their reasons nor give
any reasons for selection or nonselection.  Selections are based on
relative qualifications and the projected need in each MOS for E-7, E-8,
and E-9.  A Soldier within an announced zone of consideration may write to
the President of the selection board inviting attention to any matter he or
she feels is important in consideration of his or her records and are
considered privileged information and will not be filed in the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  While it is unfortunate that the applicant was not promoted beyond the
pay grade of E-6, it is a well known fact that not everyone who is eligible
for promotion during a given selection board is selected because there are
normally more persons eligible than there are promotion allocations.
Accordingly, promotion boards are tasked with choosing the best qualified
Soldiers to meet the needs of the Army at the time.

2.  The applicant’s contention that his 1SG was prejudiced and that his
actions essentially ended his career have been noted.  However, the
applicant has failed to show through the evidence submitted with his
application or the evidence of record that such was the case.

3.  The applicant has also failed to show that he was selected for
attendance at the ANCOC and that he was unjustly denied attendance at that
course.

4.  It is also noted that from the time the applicant served under the 1SG
in question in 1984, he served an additional 8 years and would have been
considered by selections boards every year until his retirement and could
have communicated with the selection board through written correspondence
to the President of the selection board if he had concerns regarding his
consideration.

5.  Additionally, if the applicant believed that he had been wronged by his
1SG at the time, he could have requested a commander’s inquiry be conducted
or filed a grievance through the chain of command, the Equal Employment
Opportunity (EEO) office or the Inspector General’s office.  There is no
evidence to suggest that the applicant took any such actions.  Accordingly,
it would be inappropriate for the Board to take any action in this matter
without appropriate supporting evidence, some 21 years after the alleged
incident occurred.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 August 1992; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 August 1995.  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

___JS  __  ___EA __  ___CK __  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.



            _____John Slone_________________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040010787                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/15                              |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |1992/08/31                              |
|DISCHARGE AUTHORITY     |TITLE 10 USC SEC3914                    |
|DISCHARGE REASON        |RETIREMENT                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |310/promotion                           |
|1.131.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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