RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 September 2005
      DOCKET NUMBER:  AR20050000064


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, correction of his record to show he
held the rank and pay grade of staff sergeant/E-6 (SSG/E-6) on the date of
his separation, and that he be provided additional disability severance pay
as a result.

2.  The applicant states, in effect, a representative of the Department of
Veterans Affairs (VA) informed him the highest rank he held while on active
duty should be reflected on his separation document (DD Form 214), and that
his disability severance pay should have been based on that higher rank and
pay grade.

3.  The applicant provides a copy of his DD Form 214 and SSG/E-6 promotion
orders in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 August 2000.  The application submitted in this case is
dated
21 December 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 limitations 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 record shows he enlisted in the Regular Army (RA) and
entered active duty on 27 May 1992.  He was trained in, awarded and served
in military occupational specialty (MOS) 93F (Field Artillery
Meteorological Crewmember).

4.  55th Personnel Services Battalion Orders Number 349-01 authorized the
applicant’s promotion to SSG/E-6, effective 1 September 1998.  The
additional instructions of these orders stipulated that the applicant’s
failure to attend, or graduate from the Noncommissioned Officer Education
System (NCOES) would result in the administrative revocation of the
promotion orders.

5.  On 16 August 1999, the Commandant of the United States Army
Noncommissioned Officer Academy, Fort Sill, Oklahoma, denied the applicant
enrollment in the Basic Noncommissioned Officer Course (BNCOC) due to his
failure to meet regulatory height and weight requirements.

6.  On 20 August 1999, Headquarters, 24th Infantry Division Orders Number
232-00275 revoked 55th Personnel Services Battalion Orders Number 349-01,
which had authorized the applicant’s promotion to SSG/E-6.  The authority
for this revocation was paragraph 1-17, Army Regulation 600-8-19.

7.  On 9 June 2000, a Physical Evaluation Board (PEB) determined the
applicant was physically unfit and recommended he be assigned a disability
rating of
20 percent (%) based on the diagnosed medical conditions of right hip pain
and a right shoulder injury.  On 16 June 2000, the applicant concurred with
the findings and recommendations of the PEB and waived his right to a
formal hearing.

8.  A physical disability information sheet prepared on the applicant
during his transition processing shows a determination was made that the
highest grade he held and served in satisfactorily was sergeant/E-5 (SGT/E-
5).

9.  On 3 August 2000, the applicant was honorably discharged under the
provisions of paragraph 4-24B(3), by reason of disability, severance pay.
The DD Form 214 he was issued shows he held the rank of SGT/E-5 on the date
of his separation, and that he had completed a total of 8 years, 2 months
and
7 days of active military service.  The applicant authenticated this
document with his signature in Item 21 (Signature of Member Being
Separated).

10.  Title 10 of the United States Code, section 1203 (10 USC 1203)
provides the legal authority for separation of members unfit to perform the
duties of the member’s office, grade, rank, or rating because of physical
disability incurred while entitled to basic pay.  It authorizes the
separation of these members with severance pay.  10 USC 1212 provides
guidance on computing disability severance pay.  It states, in pertinent
part, that a member is authorized to received disability severance pay
based on the grade and rank in which he was serving on the date he is
separated, or in a higher temporary grade or rank in which he served
satisfactorily as determined by the Secretary of the military department
concerned.

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
prescribes the Army’s enlisted promotion and reduction policy.  Paragraph 1-
17 contains guidance on erroneous promotion and de-facto status.  It
states, in pertinent part, that instruments announcing erroneous promotions
will be revoked.

12.  Paragraph 1-27 of the enlisted promotion regulation contains guidance
on NCOES requirements for promotion and conditional promotion.  It states,
in pertinent part, that a Soldier must be Basic Noncommissioned Officer
Course (BNCOC) graduate to be eligible for promotion to SSG/E-6.  It
further states that conditional promotions to SSG/E-6 will not exceed 12
months.  Soldiers enrolled in their appropriate NCOES course at the end of
the 12-month timeframe will be allowed to complete the training and retain
their promoted grade upon graduation.  It further states that Soldiers who
fail to successfully complete, fail to remain eligible to be scheduled for
or attend, who are denied enrollment in, or who do not attend their
scheduled NCOES class (through fault of the Soldier) will be
administratively reduced and/or removed from the promotion list.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant held the rank and pay
grade of SGT/E-5 on the date he was separated by reason of disability,
severance pay.

2.  By law and regulation, in order for a member to receive disability
severance pay at a higher grade and rank than the one he holds on the date
of separation, the Secretary of the military department concerned must
determine his service in that grade was satisfactory.  In this case, the
evidence of record confirms the applicant’s conditional promotion to SSG/E-
6 was revoked and he was removed from the promotion standing list for
cause, due to his being denied enrollment in the BNCOC.  As a result, his
service as a SSG/E-6 is not considered satisfactory for severance pay
computation purposes.  Therefore, there is an insufficient evidentiary
basis to support granting the requested relief.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 August 2000.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 2 August 2003.  However, he failed to 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

___JEA__  __BPI___  __MJF__  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 E. Anderholm___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000064                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/22                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |200/08/03                               |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disbility, Severance Pay                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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