RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 December 2004
      DOCKET NUMBER:  AR2004105981


      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. Mark D. Manning               |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 he be issued a certificate of promotion for
his lateral appointment from Specialist to Corporal.

2.  The applicant states that he was given a photocopy of the certificate
for the ceremony as the unit did not have any blank forms at the time.  The
unit administration noncommissioned officer took the copy back, saying he
would get a certificate as soon as the unit could get them from
headquarters.  He left the unit in November 1995, before he could get it.

3.  The applicant provides the documents listed in the Remarks section of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 June 1995.  The application submitted in this case is dated22
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 initially enlisted in the Regular Army on 17 January 1984
in pay grade E-3.  He was promoted to Specialist Four, E-4 on 17 May 1984.
He was discharged on 31 December 1984.  He enlisted in the Army National
Guard on 17 December 1990 as a Specialist, E-4.

4.  The applicant provided Company D, 1st Battalion, 127th Armor, New York
Army National Guard (ARNG) orders dated 4 June 1995 laterally appointing
him to Corporal, E-4.

5.  Effective 15 December 1995, the applicant was transferred to
Headquarters and Service Company, 204th Engineer Combat Battalion, New York
ARNG on orders published by the Office of the Adjutant General, State of
New York.  These orders show his rank as Specialist.

6.  On 31 October 1996, the applicant was honorably separated from the
ARNG. His Report of Separation and Record of Service shows his rank as
Specialist.
7.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), the
version in effect at the time, stated, in paragraph 1-25b, that the
promotion certificate is not the official instrument of promotion.
Paragraph 1-25c stated that certificates would not be retroactively issued
for promotions before 1 November 1990.  Paragraph 1-25d stated that a
Soldier who was reduced one or more grades would receive the appropriate
certificate when again promoted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he was given a photocopy of the promotion
certificate at the time he was laterally appointed to Corporal.  However,
it appears his unit gave it to him as an exception to regulatory policy.
The regulation states that the certificate is given upon promotion.  The
applicant was not promoted to Corporal, he was laterally appointed to
Corporal.  There is no regulatory authority on which to base granting the
relief requested.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 June 1995, the date he was laterally
appointed to Corporal; therefore, the time for the applicant to file a
request for correction of any error or injustice expired on 3 June 1998.
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 RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mdm___  __jed___  __jbg___  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.




            ____Mark D. Manning___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105981                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041207                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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