RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        FEBRUARY 2, 2005
      DOCKET NUMBER:  AR2004105774


      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             |
|     |Ms. Constance B. Sims             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard              |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Maribeth B. Love              |     |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 to be promoted to a permanent rank on the
permanent disability retirement list, retroactive to 15 July 1971.

2.  The applicant states that the Army Regulations (AR) provide for Army
Retirees to be advanced on the Retired list to the highest grade that they
served satisfactorily in while on active duty.  He also states that because
of his education and decorations he is entitled to the permanent enlisted
(E) rank of E-9 or Chief Warrant Officer three (CW3).

3.  The applicant provides a Department of Defense Form (DD Fm) 215, a DD
Fm 214, which indicates that at the time of discharge he was serving in the
pay grade of E-4; a chart on Educational Level of Military Personnel on
Active Duty; a letter from the House of Representatives regarding his
participation in a       re-election campaign, two photographs; and a
letter from the Customer Information Quality Assurance (CIQA) Department
indicating that on 25 July 2000, he submitted an application concerning
retirement at a higher grade and because of the unavailability of his
service records his case was closed administratively.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:  Counsel requests that the Board
look into the matter and provide a written response to the applicant’
concerns.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 15 July 1971.  The application submitted in this case is dated
2 March 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 and entered active duty on 4 August 1969, in pay
grade E-1, with 16 years of civilian education and a degree in History.  He
successfully completed basic and advance individual training and was
promoted to pay grade E-2 in December 1969.  On 5 January 1970, he was
advanced to the pay grade of E-5 when he entered Infantry Officer Candidate
School (OCS) at Fort Benning, Georgia.

4.  His records indicate that on 21 April 1970 he was released from OCS for
personal reasons and his grade of E-2 was restored.

5.  In June 1970, he was assigned to Vietnam as an infantryman and promoted
to pay grade E-3 on 20 June 1970.  On 25 June 1970 the applicant sustained
a “twisting type injury to the left knee…while jumping from a helicopter.”
As a result of his injuries he was evacuated from Vietnam and ultimately
retired by reason of disability of 15 July 1971, having never been restored
to active duty.  He was, however, promoted to pay grade E-4 on 20 December
1970 while a member of the Medical Holding Detachment at the United State
Naval Hospital in Saint Albans Long Island, New York.

6.  Army Regulation 350-51, states that upon enrollment in class,
candidates will be promoted to pay grade E-5, in accordance with AR 600-8-
19, if they then hold a lower grade. Candidates with a higher grade will
retain that grade. Students promoted on the basis of OCS attendance who
fail to successfully complete the course will be reduced to the grade held
before entering OCS or to a grade deemed suitable.

DISCUSSION AND CONCLUSIONS:

1.  Considering all the evidence, allegations, and information presented by
the applicant, together with the evidence of record, applicable law and
regulations, it is concluded that the applicant was properly retired in the
pay grade of E-4.

2.  The evidence of record indicates the applicant was restored back to the
previous pay grade of E-2.  The fact that he did not complete OCS, the
basis for his promotion to pay grade E5, indicates that he was properly
reduced back to the pay grade of E2 and that he did not successfully serve
in pay grade E5.

3.  The applicant makes mention that his education and decorations is an
entitlement to advance him to the permanent rank of E-9 or CW3.  Pursuing a
college degree fulfills the professional development requirements of the
designated branch or functional area.  However, there are no regulations
that stipulate that if a soldier attains a college degree he/she will
automatically be promoted to the rank of E-9 or CW3.

4.  The actions by the Army in this case were proper, and there is no doubt
to be resolved in favor of the applicant.
5.  The evidence of record clearly shows that orders were published on
1 July 1971 placing the applicant on the Retired list in the pay grade of E-
4.  There is no evidence of record to support his contention that he was
promoted to E-5 (other than the OCS promotion) and successfully served in
that pay grade prior to his discharge on 15 July 1971.  Therefore, his DD
Form 214 is correct as currently reflected.

6.  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.

7.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

mbl_____  tdh _____  ji       ____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





                                  ____Thomas D. Howard  __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004105774                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050205                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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