RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 October 2005
      DOCKET NUMBER:  AR20050001835


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Ms. Linda D. Simmons              |     |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, promotion to the pay grade E-7.

2.  The applicant states, in effect, he should have been promoted to the
pay grade of E-7 as was promised to him.  He claims that he was not
promoted due to the corruption, dereliction of duty by officers and first
sergeants of the units he served in.

3.  The applicant provides a letter from his daughter written on his behalf
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 June 1962.  The application submitted in this case is
dated
25 January 2005.

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 initially enlisted in the Regular Army
and entered active duty on 8 April 1946.  His Service Record (DA Form 24)
shows, in Section I, that he was promoted to the rank and pay grade of
sergeant first class/E-6 (SFC/E-6) on 25 February 1956, and that this is
the highest rank he attained while serving on active duty.

4.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of any
orders or documents that indicate the applicant was ever selected for
promotion to the pay grade E-7 by a properly constituted promotion
selection board, or that he was promoted to a pay grade above E-6 by the
proper promotion authority.

5.  On 26 February 1962, the applicant submitted an application for
retirement (DA Form 2339), in which he requested to be retired on 30 June
1962, in the retired grade of SFC/E-6.

6.  On 29 June 1962, The Adjutant General notified the applicant’s unit
commander that the applicant’s retirement was approved and announced in
Department of the Army (DA) Special Orders Number 154, Paragraph 115.
These orders authorized the applicant’s release from active duty (REFRAD)
for retirement on 30 June 1962, and his placement on the Retired List on 1
July 1962, in the retired grade of SFC/E-6.

7.  On 30 June 1962, the applicant was REFRAD after completing a total of
22 years and 4 months of active military service.  The DD Form 214 he was
issued at that time confirms he held the pay grade E-6.  The applicant
authenticated this document with his signature in Item 34 (Signature of
Person Being Transferred or Discharged).

8.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of any
orders or documents that indicate the applicant was ever selected for
promotion to the pay grade E-7 by a properly constituted promotion
selection board, or that he was promoted to a pay grade above E-6 by the
proper promotion authority.

9.  On 18 July 2000, the Director of the Army Board for Correction of
Military Records returned the applicant’s application for advancement to
the pay grade of E-7 on the Retired List.  The applicant was advised that
because he was retired in the highest rank and pay grade he held while
serving on active duty, he was not eligible for advancement on the Retired
List under the provisions of Title 10 of the United States Code, Section
3964.

10.  The applicant’s daughter submits a statement on behalf of the
applicant.  In it, she claims her father was deserving of promotion based
on his outstanding record of service to the country during two wars.  She
also alleges that her father was unfairly denied promotion by a commander
who instead promoted his driver and by a first sergeant who gave the
promotion the applicant was due to another Soldier who allowed the first
sergeant to sleep with his wife.

11.  Army Regulation 600-8-19 prescribes the Army’s enlisted promotion
policy.  Chapter 4 contains guidance on the centralized promotion process
for the pay grades of E-7, E-8, and E-9.  It states, in pertinent part,
that Soldiers will be selected for promotion to E-7, E-8, and E-9 by a
centralized DA Promotion Selection Board, based on the best qualified as
determined through the collective best judgment of the promotion board
members.  The promotion policy in effect at the time of the applicant’s
retirement required a recommendation by a properly constituted local
promotion selection board and authorization for promotion by the proper
authority.  Neither the current promotion regulation, nor any previous
edition of the promotion regulation ever provided provisions for automatic
promotion based on years served and/or overall record of service.
12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 12 sets policies and procedures
for voluntary retirement of Soldiers because of length of service.
Paragraph 12-3b states, in pertinent part, that retirement will be in the
Regular or Reserve grade the Soldier holds on the date of retirement as
directed in Title 10 of the United States Code, section 3961 (10 USC 3961).
 Paragraph 12-6 contains guidance on the advancement of Soldiers on the
Retired List.  It states, in pertinent part, that retired Soldiers are
entitled to be advanced on the Retired List to the highest grade they held
and in which they satisfactorily served on active duty when their active
service plus service on the Retired List totals 30 years.  The legal
authority for this action is provided by Title 10 of the Untied States
Code, section 3964
(10 USC 3964).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was unjustly denied promotion as a
result of corruption on the part of members of his chain of command, that
his record supports his promotion, and the supporting statement he provided
were carefully considered.  However, while it is clear the applicant served
with distinction, for which he deserves congratulations, there is
insufficient evidence of record to corroborate his allegation of corruption
on the part of members of his chain of command, as he and his daughter
allege.  Therefore, there is an insufficient evidentiary basis to support
granting the requested relief.

2.  By regulation, Soldiers must be selected for promotion to the pay
grades E-7, E-8 and E-9 by a properly constituted promotion selection board
and must be promoted by the proper promotion authority.  The centralized
promotion system was not in effect at the time of the applicant’s
retirement; however, the policy at the time still required a recommendation
for promotion by a properly constituted local promotion selection board,
and authorization for promotion by the proper authority was still required.
 By law, Soldiers are retired in the rank and pay grade they hold on the
date of their REFRAD.  Retired Soldiers are entitled to be advanced on the
Retired List to the highest grade in which they satisfactorily served while
on active duty, as determined by the Secretary of the Army.  However, in
order to satisfy this requirement, a member must have been promoted to,
held, and served in the higher pay grade while on active duty.

3.  The evidence of record confirms the applicant was an SFC/E-6 on the
date of his REFRAD for retirement.  It also verifies this was the highest
pay grade he attained while serving on active duty.  It also shows he was
never recommended for promotion to the pay grade E-7 by a properly
constituted promotion selection board, and he was never promoted to, held,
or served in a higher pay grade while he was on active duty.
4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1962.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
29 June 1965.  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

___MHM_  __ALR __  __LDS__  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                 |AR20050001835                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/27                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1962/06/30                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  319  |131.0900                                |
|2.  310                 |131.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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