RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 October 2004
      DOCKET NUMBER:  AR2004204516


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 records be corrected to show he was
promoted to Sergeant First Class (SFC), E-7.

2.  The applicant states, in effect, that Commander, U. S. Total Army
Personnel Command (PERSCOM) message date time group 071200 April 1992
authorized him to be promoted to SFC the day prior to his retirement.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty) for the period ending 30 June 1992; an extract
from the Army Times dated 24 February 1992; PERSCOM message date time group
071200 April 1992, Subject: Exception to Promotion Policy; and an unlimited
power of attorney authorizing his wife to act on his behalf.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 June 1992.  The application submitted in this case is
dated             18 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 Regular Army on 29 June 1972.  He was
promoted to Staff Sergeant (SSG), E-6 effective 1 December 1979.

4.  On 8 August 1991, the applicant applied for retirement to be effective
30 June 1992.  His request was approved on 12 August 1991 and orders were
issued on that date placing him on the retired list effective 1 July 1992
in the rank of SSG.

5.  The Calendar Year 1991 SFC promotion selection board convened on 8
October 1991 and adjourned on 7 November 1991.  The applicant was selected
for promotion to SFC with a promotion sequence number of 3 (three).  The U.
S. Army Human Resources Command (formerly known as PERSCOM) informed the
Board analyst on 12 October 2004 that the applicant, with a sequence number
of 3, would have been promoted effective 1 July 1992.
6.  All Army Activities message date time group 031600Z January 1992,
Subject: Changes to Retention Control Points – Army Regulation 601-280,
changed the retention control point (RCP) for SFCs from 24 years of active
service to 22 years of active service effective 1 February 1992.  The RCP
for SSGs was not changed and remained at 20 years of active service.

7.  The applicant provided a copy of Commander, PERSCOM message date time
group 071200Z April 1992, Subject:  Exception to Promotion Policy with
sections of paragraph 3 highlighted.  This message provided guidance for
those soldiers who were selected for promotion by the Calendar Year 1991
Master Sergeant and SFC boards and who were reaching their new RCP.

8.  Paragraph 3A of Commander, PERSCOM message date time group 071200 April
1992, Subject:  Exception to Promotion Policy directed commanders to revoke
or rescind approved retirements for those soldiers who had submitted
retirements as a result of the newly-announced RCP for the grade currently
held. Paragraph 3B stated that PERSCOM would be notified of those soldiers
who would reach the RCP for the next higher grade if it was apparent the
soldier's promotion sequence number would not be reached prior to the RCP.
Those solders would be promoted one day prior to their retirement dates.

9.  Paragraph 4 of Commander, PERSCOM message date time group 071200 April
1992, Subject:  Exception to Promotion Policy stated that promotable
soldiers who had approved retirements prior to the convening date of those
boards as a result of reaching their RCP would not have their retirements
revoked or rescinded.  Those soldiers would retire on their current
established retirement dates, in current pay grades and ranks.  No
exceptions would be considered.

10.  The applicant was released from active duty on 30 June 1992 in the
rank of SSG after completing 20 years and 2 days of creditable active
service.  He was placed on the retired list 1 July 1992 in the rank of SSG.

11.  Army Regulation 635-200 (Enlisted Personnel), chapter 12 governs
retirement for length of service.  In pertinent part, it states that
soldiers who have an approved retirement are in a nonpromotable status.
They will not be promoted unless a request for withdrawal of their
retirement application has been approved.

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states,
in pertinent part, that soldiers promoted to grades SFC, Master Sergeant,
and Sergeant Major will incur a 2-year service obligation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant applied for retirement on 8 August 1991 and his request
was approved on 12 August 1991.  His retirement was to be effective 1 July
1992, at which time he would have completed 20 years and 2 days of
creditable active service.  The RCP for a SSG was 20 years of active
service.

2.  The applicant was selected for promotion to SFC by the promotion
selection board that convened on 8 October 1991.  At that time, the RCP for
an SFC was      24 years of active service.  Effective 1 February 1992, the
RCP for an SFC was reduced to 22 years of active service.  He could have
requested withdrawal of his retirement in order to accept promotion to SFC.
 There is no evidence to show that he did so.

3.  In addition, the applicant did not submit his retirement as a result of
the newly-announced RCP changes.  The RCP for his current grade of SSG had
not changed. It was still 20 years of active service.

4.  Also, paragraph 4 of Commander, PERSCOM message date time group 071200
April 1992, Subject:  Exception to Promotion Policy stated that promotable
soldiers who had approved retirements prior to the convening date of those
boards as a result of reaching their RCP would not have their retirements
revoked or rescinded.  Those soldiers would retire on their current
established retirement dates, in current pay grades and ranks.  No
exceptions would be considered.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1992; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 June 1995.  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

__jch___  __bpi___  __ym____  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.




            ___James C. Hise______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004104516                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041019                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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