RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         25 October 2005
      DOCKET NUMBER:  AR20050002116


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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, reconsideration of his request for
promotion to staff sergeant (SSG).

2.  The applicant states, in effect, that he is requesting reconsideration
of the Board's final decision in denying his promotion to staff sergeant.
He states he is providing as new evidence his certificate of completion
from Noncommissioned Officer (NCO) School at the Empire State Military
Academy on 23 August 1975.  He states this certificate was not available
for the board to evaluate during his previous board proceedings.

3.  He also states, in effect, that he attempted to reenter into the Army
National Guard after 11 September 2001, thinking he would be promoted to
staff sergeant and that he might be beneficial as an instructor.  He states
he was denied reenlistment into the Army National Guard based on his
service connected disability.  He also states, he held E-6 slots for many
years and even E-7 for a short period of time.  He further states, he
believes he should be promoted to E-6 because he does not want to remain as
a disabled E-5 forever and deserves to be promoted.

4.  The applicant provides the following in support of his application:
Self-Authored Letter, dated 4 January 2005; Record of Proceedings
AR2004106076, dated 9 November 2004; Department of Veterans Affairs Letter,
dated
29 December 2004; U.S. Army Reserve Personnel Command Memorandum, undated;
and Certificate of Completion of Course.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003095972, on
9 March 2004.

2.  In its original conclusions, the Board found that the evidence of
record confirmed the applicant was promoted to the rank of sergeant (SGT)
on
29 March 1983, but failed to show he was ever recommended for or promoted
to SSG prior to his separation from active duty

3.  The applicant’s records show that he was born on 11 April 1943 and
enlisted in the U.S. Marine Corps on 10 August 1961 for a period of 4
years.  He then spent a series of assignments in the Marine Corps Reserve
and the New York Army National Guard (NYARNG).

4.  On 27 April 1992, the applicant received a Notification of Eligibility
for Retired Pay at Age 60 (20 Year Letter).

5.  In a letter to his commander, dated 23 May 1995, the applicant
requested immediate transfer to the U.S. Army Control Group (Retired) as an
exception to policy.  At the time, he was serving an enlistment in the Army
National Guard with an expiration date of 28 March 1998.  The applicant
stated in his letter that he was retired from his full time employment due
to a physical disability and felt that the disability rendered him unfit
for continued military service.  In the letter the applicant made the
following comment: “Serving for the NYARNG has been rewarding and
challenging.  I’ve enjoyed serving my state and country and appreciate
everything the NYARNG has offered me.”  He was discharged on 1 October 1995
in pay grade E-5.

6.  The applicant provides a Department of Veterans Affairs letter, dated
29 December 2004, which shows he was granted a 30 percent rating for his
service connected condition of adjustment disorder with depressed mood and
also explains his entitlement amounts and payment start date.

7.  The applicant also provides a copy of his Certificate of Completion of
Course
for his completion of a prescribed course of instructions given at the New
York Army National Guard Noncommissioned Officer School, dated 23 August
1975.

DISCUSSION AND CONCLUSIONS:

1.  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 new evidence to satisfy this requirement.

2.  Promotion to the pay grade of E-6 requires that personnel be
recommended for promotion and that they meet the established promotion
criteria.  There is no evidence to establish that he was ever recommended
for promotion or that he was unjustly denied a promotion that he was
entitled to receive.

3.  The evidence of record confirms the highest rank attained by the
applicant during his active duty service was SGT, as evidenced by his DA
Form 20 and
Retirement Order Number 197-045.  Based on the applicant's MPRJ being void
of orders or other documents indicating that he was ever recommended for or
promoted to SSG there is an insufficient evidentiary basis to support
granting the requested relief in this case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 October 1995; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
30 September 1998.  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

___JEA__  __JAM __  __LMD__  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                 |AR20050002116                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-10-25                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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