RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 August 2005
      DOCKET NUMBER:  AR20040011513


      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             |
|     |Ms. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |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 correction of item 5a (Grade, Rate or Rank) and
item 5b (Pay Grade) on his DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge) to show his rank and pay grade as sergeant
(SGT), E-5.

2.  The applicant states that his rank is incorrectly shown on his DD Form
214 and that it should reflect SGT, E-5.  He has orders dated 23 May 1969
promoting him to E-5.

3.  The applicant provides a copy of a Recommended List for Pay Grade E-6
and E-5 dated 23 May 1969; a copy of his DA Form 20 (Enlisted Qualification
Record); his discharge orders from the U.S. Army Reserve Control Group
(Standby); his orders amending his award of the Army Commendation Medal
with "V" Device; and his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 23 January 1970.  The application submitted in this case is
dated 29 November 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 was inducted into the Army on 26 January 1968.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty (MOS) 11B (Light Weapons
Infantryman).  He was assigned to the Air Cavalry Troop, 11th Armored
Cavalry Regiment in Vietnam on 29 July 1968.

4.  He was promoted to the temporary grade of specialist four (SP4), E-4 by
Air Cavalry Troop, 11 Armored Cavalry Regiment Unit Order Number 77 dated
18 December 1968.

5.  His service personnel records contain Air Cavalry Troop, 11th Armored
Cavalry Regiment Unit Order Number 12 dated 26 February 1969 which
appointed him to the temporary noncommissioned officer grade of acting SGT,
 E-5.

6.  On 7 March 1969, the applicant's unit commander recommended him for
promotion to the grade of SGT, E-5 in MOS 11B under the provisions of the
U.S. Army Vietnam (USARV) Accelerated Promotion Program.  He was reviewed
by a promotion board and was recommended for promotion to SGT, E-5 by a
majority of the board's membership.

7.  The Recommended List for Pay Grade E-6 and E-5 dated 23 May 1969 shows
that the applicant was recommended for appointment to pay grade E-5.  The
list stated that personnel would be considered for appointment to grade E-6
and E-5 as indicated as position and MOS vacancies occurred within the
command and promotion quotas were received.  This list was not to be
construed as promotion orders.

8.  Headquarters, 5th Infantry Division (Mechanized) and Fort Carson
Special Orders Number 23 dated 23 January 1970 released the applicant from
active duty on 23 January 1970 in the rank of SP4, E-4.

9.  Item 5a on his DD Form 214 shows his rank as "SP4" and item 5b shows
his grade as "E4."

10.  Chapter 7 of Army Regulation 600-200 (Enlisted Personnel Management
System) governed the promotion and reduction of enlisted personnel at the
time. It stated that individuals could be recommended for promotion by the
unit commander only against authorized position vacancies existing or
projected for a 2-month period within the command as announced by the
promoting authority.  An individual who was next in line for promotion to
fill this vacancy and for whom a promotion quota was received would be
promoted by the losing commander up to EDCSA (effective date of change of
strength accountability) even though intransit.

DISCUSSION AND CONCLUSIONS:

1.  Orders show the applicant was appointed as an acting SGT, E-5 in
February 1969.  He was later recommended for promotion to SGT, E-5 and his
name was placed on the promotion list in May 1969.

2.  Although the applicant was recommended for promotion to E-5, based on
the requirements of Army Regulation 600-200, there is no evidence to show
he would have been the individual who was next in line for promotion to
fill the required vacancy or that a promotion quota was received against
which he could have been promoted.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 January 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 January 1973.  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

WP______  RD______  JM______  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.




                                  William Powers________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011513                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050802                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |129.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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