RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           JULY 15, 2004
      DOCKET NUMBER:   AR2004099898


      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. Roger W. Able                 |     |Chairperson          |
|     |Mr. James Anderholm               |     |Member               |
|     |Ms. Marla Troup                   |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 that his records be corrected to show that he
was promoted to the pay grade of E-5.

2.  The applicant states, in effect, that he was unjustly not promoted to
the pay grade of E-5 and that his promotions up to the pay grade of E-4
were unjustly delayed.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 March 1972.  The application submitted in this case is dated
21 October 2003.

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 enlisted in Roanoke, Virginia, on 4 September 1969 for a period of 3
years and training as a military policeman (MP).  He completed his training
at Fort Gordon, Georgia and was advanced to the pay grade of E-2 on 4
January 1970.

4.  He was transferred to Vietnam on 3 February 1970 and was advanced to
the pay grade of E-3 on 15 February 1970.  He completed his tour in Vietnam
on 19 December 1970 and was transferred back to Fort Gordon.  He was
advanced to the pay grade of E-4 on 29 June 1971.

5.  He was transferred to West Point, New York, on 7 July 1971 for duty as
a MP and on 8 September 1971, nonjudicial punishment was imposed against
him for sleeping on his post as a patrolman.  His punishment consisted of a
reduction to the pay grade of E-3 (suspended for 90 days), a forfeiture of
pay and extra duty.

6.  He remained at West Point until 8 March 1972, when he was honorably
released from active duty in the pay grade of E-4.  He had served 2 years,
6 months and 5 days of total active service.

7.  A review of the applicant's records fails to show that he was ever
recommended for or attained promotion list standing for the pay grade of E-
5.

8.  Army Regulation 600-200, in effect at the time, served as the authority
for promotion to the pay grade of E-5.  It provided, in pertinent part that
individuals had to be recommended for promotion and appear before a field
promotion board.  Individuals recommended for promotion by the local
selection board would be placed on a promotion standing list based on the
points assessed to each individual.  In order to be eligible to appear
before a selection board for promotion to the pay grade of E-5, individuals
must have served at least 24 months of active Federal service (AFS) to be
placed in the secondary zone of consideration and 36 months AFS to be
placed in the primary zone of consideration.

9.  That regulation also states that promotions will not be made to
recognize a job well done, but rather to recognize the individual with
great potential for leadership or increased technical skills in his or her
chosen field of specialization.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  There is no evidence in the available records to show that the
applicant was ever recommended for promotion to the pay grade of E-5 or
that he ever attained promotion list standing.  Accordingly, there is no
basis to promote him to that pay grade.

3.  The applicant's contention that he was unjustly denied promotion to the
pay grade of E-5 appears to be unsubstantiated and without merit.
Promotion to the pay grade of E-5 is not an automatic entitlement and
requires a recommendation from the individual's supervisor and commander
before an individual may appear before a selection board.  Likewise, a
recommendation for promotion is also not an entitlement based on longevity
in a current grade.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 March 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 7 March 1975.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

ra______  a  ______  t_______  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.




            ____Roger W. Able____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004099898                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040715                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |310/PROM                                |
|1.131.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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