RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:             10 August 2004
      DOCKET NUMBER:     AR2004100685


      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:

|     |Ms. Gail J. Wire                  |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Paul M. Smith                 |     |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 his record be corrected to show
he was advanced to the rank and pay grade of private first class/E-3 (PFC/E-
3) on
1 June 2000.

2.  The applicant states, in effect, that he was promoted to PFC/E-3, but
his retirement packet still indicates he was a private/E-2 (PV2/E-2).  He
claims that based on his promotion to PFC/E-3, his retirement pay should be
adjusted.

3.  The applicant provides a copy of a Personnel Action Form (DA Form 4187)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 June 2000.  The application submitted in this case is
dated
18 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.  The applicant’s record shows that he enlisted in the Regular Army and
entered active duty, in the rank and pay grade of PV2/E-2, on 29 July 1999.


4.  On 9 May 2000, Orders Number 130-0003 were published by Headquarters,
Walter Reed Army Medical Center, Washington D.C.  These orders authorized
the applicant’s release from active duty (REFRAD) because of physical
disability on 30 June 2000 and placement on the Temporary Disability
Retired List (TDRL) on 1 July 2000.  These orders indicated that the
applicant’s retired grade of rank was PV2.
5.  On 30 June 2000, the applicant was REFRAD under the provisions of
paragraph 4-24B(2), Army Regulation 635-40, by reason of disability,
temporary.

6.  The separation document (DD Form 214) he was issued on the date of his
REFRAD, 30 June 2000, shows that at the time he had completed a total of
11 months and 2 days of active military service and he held the rank and
pay grade of PV2/E-2.  This document further shows that during his active
duty tenure, he earned the Army Service Ribbon.  The applicant
authenticated this document with his signature in Item 21 (Signature of
Member Being Separated).

7.  The applicant provides a copy of a DA Form 4187 that indicates he was
promoted to PFC/E-3, effective 1 June 2000.  The applicant and the unit
commander signed this document on 7 June 2000.  However, this advancement
was never posted to the applicant’s record nor was it entered into the pay
record. Further, there is no indication that the applicant pursued the
issue of his promotion when his separation document was issued some three
weeks later.

8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
prescribes the Army’s policy on enlisted promotions and reductions.
Chapter 2 provides the policy for promotions to specialist and below.

9.  Paragraph 2-3b of the promotion regulation contains the eligibility
criteria for automatic promotion to PFC/E-3.  The requirements are 12
months time in service and 4 months time in grade.  The regulation also
authorizes promotions to PFC/E-3 with waiver.  The requirements for
promotion to PFC/E-3 with a waiver are six months time in service and 2
months time in grade.  Soldiers promoted prior to or after the automatic
promotion date require a DA Form 4187 and submission of a grade change
transaction to be promoted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he was promoted to PFC/E-3 prior to his
REFRAD and placement on the TDRL and the supporting DA Form 4187 he
provides were carefully considered.  However, lacking any evidence of
record to support the information he provides, there is an insufficient
evidentiary basis to support granting the requested relief.
2.  The evidence of record confirms that the applicant held the rank and
pay grade of PV2/E-2 on the date of his REFRAD and that he was placed on
the TDRL in this rank and pay grade, as evidenced by his retirement orders
(Orders Number 130-0003) and the DD Form 214 he was issued on the date of
his REFRAD, 30 June 2000.

3.  Further, the evidence does not show that the promotion indicated in the

DA Form 4187 the applicant provides was ever formalized and/or made a
matter of record.  However, the evidence of record does contain a properly
constituted DD Form 214 that was issued to the applicant on the date of his
separation,
30 June 2000, which lists his rank and pay grade as PV2/E-2.  The applicant
authenticated this separation document with his signature, thereby
verifying that the information contained therein, to include his rank and
pay grade, were correct at the time the DD Form 214 was prepared and
issued.

4.  There is no information on file in the record that shows the applicant
ever raised the issue of his retired rank and pay grade at the time of his
REFRAD on
30 June 2000.  The DA Form 4187 he provides contains his signature and
indicates he and his unit commander signed the form on 7 June 2000.  Thus,
it is reasonable to assume that had the promotion been effected as
indicated on the DA Form 4187, he and his unit commander would have taken
the necessary steps to ensure his promotion was documented in his record
prior to his separation.

5.  Further, the fact the applicant completed his separation processing and
never questioned the rank and pay grade entered on the DD Form 214 he
signed on
30 June 2000, would support a conclusion that he was never actually
promoted prior to his REFRAD.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 2000.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
29 June 2003.  However, he 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

_GJW___  ___KAH__  __PMS_   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.




            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100685                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/08//DD                             |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2000/06/30                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |TDRL                                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.0600                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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