RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 November 2004
      DOCKET NUMBER:  AR2004102960


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 his rank and pay grade at separation be
corrected to sergeant (E-5).

2.  The applicant states that he was promoted in Vietnam, but when he out-
processed in California there was no record of the promotion.

3.  The applicant provides a sworn statement in the form of a letter from
his supervisor in Vietnam, copies of his DD Form 214 (Report of Transfer or
Discharge), DA Form 1577 (Authorization for Issuance of Awards), DA Form 20
(Enlisted Qualification Record).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 8 September 1967.  The undated application was received on
26 January 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.  The applicant's military records show he was inducted, on 15 November
1965, and served in Vietnam as a lineman from 30 October 1966 to 3
September 1967.

4.  He was advanced to specialist four (E-4), on 19 January 1967.

5.  Subsequent to 19 January 1967, all references to his rank or pay grade,
including the, hand printed, 8 September 1967 Standard Form 89 (Report of
Medical History), that he provided for his separation medical examination,
indicate he was a specialist four (E-4).

6.  On 8 September 1967 the applicant was separated with an honorable
characterization of service and transferred to the Army Reserve Control
Group as a specialist four (E-4).

7.  The 1 December 2003 sworn letter is from a retired sergeant first
class, who reports that he was a section chief and the applicant's
supervisor.  While he was passing through their parent unit in late March
or early April 1967, he saw the mimeograph master of the order that showed
that the applicant had been promoted to sergeant (E-5).

DISCUSSION AND CONCLUSIONS:

1.  The sworn statement from the applicant's  supervisor has been noted.
Unfortunately, in the absence of any evidence of record that the applicant
had been promoted, it is insufficient to overcome the presumption of
regularity.

2.  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.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 September 1967; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 7 September 1970.  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 __  __JRS __  __RLD___  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                 |AR2004102960                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041102                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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