RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 November 2004
      DOCKET NUMBER:  AR2004104338


      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. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Mr. Robert Rogers                 |     |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 he be retroactively promoted to
the rank of Master Sergeant (MSG/E-8) and retired in that pay grade.

2.  The applicant states, in effect, that, in January 1997 (sic), he held
an E-8 billet for 13 months, which should have qualified him for promotion
to MSG.

3.  The applicant provides no documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 June 1981, the date of his retirement for length of
service.  The application submitted in this case is dated 17 February 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 enlisted in the US Army Reserve on 10 July 1960.  He
served on active duty for training from 30 July to 13 August 1960.  He
enlisted in the Regular Army on 7 July 1961 and remained on active duty
through a series of reenlistments until he retired for length of service on
30 June 1981 with 20 years and 8 days of creditable active Federal service.

4.  The applicant's DD Form 214 (Certificate of Release or Discharge From
Active Duty) shows that he retired as a Sergeant First Class (SFC/E-7).
His date of rank as an SFC was 1 May 1973. His record of appointments and
reductions show that he was never promoted to MSG.

5.  The applicant's records show that he did not meet Army weight
standards, that he was flagged, and that he was in the Army Weight Control
Program.  He remained overweight through his retirement and, in November
1980, was granted a waiver and allowed to extend his enlistment in order to
qualify for retirement.

6.  Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions)
prescribes the enlisted promotions and reductions function of the military
personnel system.  It provides principles of support, standards of service,
policies, tasks, rules, and steps governing all work required in the field
to support promotions and reductions.  It provides the objectives of the
Army’s Enlisted Promotions System, which include filling authorized
enlisted spaces with the best-qualified soldiers.  It also provides for
career progression and rank that is in line with potential, recognizing the
best qualified soldier that will attract and retain the highest caliber
soldier for a career in the Army.  Additionally, it precludes promoting the
soldier who is not productive or not best qualified, thus providing an
equitable system for all soldiers.

7.  Headquarters, Department of the Army (HQDA) manages the centralized
promotion system to E-7 through E-9.  In order to be eligible for promotion
to E-7 through E-9, the soldier must meet all eligibility criteria before
the HQDA centralized promotion board convenes.  Chief among the criteria is
that the soldier must not be barred from reenlistment under provisions of
AR 601–280.  Soldiers who do not meet weight control standards are barred
from reenlisting.  Nothing in the regulation states that a soldier may be
promoted to a higher grade simply for having performed in that grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not shown, and the record does not support, that he
was ever promoted to the rank of MSG.

2.  Promotion to MSG is centralized at HQDA and is dependent upon the
soldier meeting stringent criteria, including weight control standards.
The applicant did not meet Army weight control standards and was flagged
and barred from reenlisting.  As such, he was precluded from promotion
consideration to MSG.

3.  Having performed the duties of the next higher grade does not entitle a
soldier to promotion to that grade.  Because of personnel shortages,
soldiers are often required to perform the duties of a higher grade.  Such
performance does not automatically qualify a soldier for promotion to that
grade; the soldier must meet all the promotion criteria established by HQDA
for a particular grade.

4.  The applicant was retired on 30 June 1981; contrary to his assertion in
his application, he held no active duty position in January 1997.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 June 1984.  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

__mhm___  __ecp___  __rr____  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.



                                        Melvin H. Meyer
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004104338                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041116                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.0900                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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