RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          24 August 2004
      DOCKET NUMBER:  AR2004100684


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |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 that he be advanced to the rank of staff
sergeant (SSG), pay grade E-6.

2.  The applicant states that for close to 3 months in Vietnam he was a
platoon leader who drilled troops and led the platoons in 1965 and 1966.
He goes on to state that he performed the duties of an E-6 and therefore
should be awarded the higher rank.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 January 1966.  The application submitted in this case is
dated 29 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 was inducted in Roanoke, Virginia, on 31 January 1964.  He completed
his basic combat training at Fort Gordon, Georgia, and was transferred to
Fort Riley, Kansas, to undergo his training as a light weapons infantryman.
 He was assigned to Company A, 1st Battalion, 26th Infantry Regiment.  He
was advanced to the pay grade of E-3 on 17 November 1964.

4.  On 25 September 1965, he deployed to Vietnam with his unit and was
advanced to the pay grade of E-4 on 21 October 1965.  He departed Vietnam
on 26 January 1966 and was transferred to Oakland Army Base, California,
where he was honorably released from active duty in the pay grade of E-4 on
28 January 1966, due to the expiration of his term of service (ETS).  He
had served 1 year, 11 months and 28 days of total active service.

5.  A review of the available records fails to show that the applicant was
ever recommended for or promoted above the pay grade of E-4.  There is also
no indication that he ever appeared before a promotion selection board or
was on the promotion standing list for his unit.
6.  Army Regulation 600-200, in effect at the time, provided the criteria
for promotion to the pay grades of E-5 and E-6.  It provides, in pertinent
part, that in order for individuals to be promoted to the pay grades of E-5
and E-6, they must be recommended by the commander and must appear before a
promotion selection board and be recommended for promotion.  Individuals
who are recommended are given promotion points based on several different
areas evaluated, to include time in grade and time in service and are
placed on a promotion standing list based on their score on the list.
Individuals who meet the monthly promotion cut-off scores and unit
allocations are promoted accordingly.

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 indicate that the
applicant ever met the criteria of the applicable regulation in effect at
the time to be promoted above the pay grade of E-4.

3.  While the applicant may have served in the capacity of a
noncommissioned officer in a higher grade at some point in his 4 months
tour in Vietnam, it was still up to the commander to ascertain his
performance and make the appropriate recommendations for promotion.  The
evidence of record contains no such recommendation and therefore there is
no basis in which to grant the applicant's request for advancement to the
pay grade of E-6.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 January 1966; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 January 1969.  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

__mkp___  __mhm___  __phm___  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.



                                  Margaret K. Patterson
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100684                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040824                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |310/PROM                                |
|1.131.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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