RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          29 November 2005
      DOCKET NUMBER:  AR20050002549


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |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 that his records be corrected to reflect that
his rank was Specialist Five (SP5).

2.  The applicant states that his report of separation (DD Form 214)
incorrectly reflects that his rank was Specialist Four (SP4), when in fact
it was SP5.

3.  The applicant provides a copy of orders promoting him to the rank SP5
and a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 22 April 1971.  The application submitted in this case is dated
7 February 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 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.  He was inducted in Chicago, Illinois, on 14 April 1969 and was
transferred to Fort Bragg, North Carolina, to undergo his basic combat
training (BCT).  He completed his BCT and was transferred to Fort Dix, New
Jersey, to undergo his advanced individual training (AIT).

4.  He completed his AIT and was transferred to Vietnam on 18 September
1969, for duty as a rifleman in military occupational specialty (MOS)
11B10.  He was advanced to the pay grade of E-3 on 24 November 1969 and to
the pay grade of E-4 on 6 May 1970.

5.  He departed Vietnam on 17 September 1970 and was transferred to Fort
Hood, Texas, where he was assigned to an armor company for on-the-job
training (OJT) in MOS 11E20 (armor crewman).



6.  On 8 January 1971, his commander recommended him for promotion to the
pay grade of E-5 in MOS 11E20.  He also indicated that the applicant was
aware that he may have to be transferred as a result of being promoted and
that he was fully willing to do so.  The applicant appeared before a
promotion board on 21 January 1971 and was recommended for promotion and
was placed on the promotion standing list.

7.  A review of the applicant’s records fails to show any indication that
the applicant was promoted to the pay grade of E-5.  However, the orders
provided by the applicant show that orders were published on 20 April 1971
which show that he was promoted to the pay grade of E-5 on 1 April 1971, in
MOS 11E20.

8.  On 22 April 1971, he was honorably released from active duty (REFRAD)
in the pay grade of E-4, due to the expiration of his term of service
(ETS).  He had served 2 years of total active service.  The applicant
signed his DD Form 214 at the time of his separation.

9.  Army Regulation 600-200, in effect at the time, served as the authority
for enlisted promotion.  It provided, in pertinent part, that a
precondition for promotion to the pay grade of E-5 was that individuals
must have at least 3 months of active service remaining in order to accept
a promotion to the pay grade of E-5 and 12 months of service remaining for
promotion to the pay grade of E-6.  The regulation also provided that
waivers for service remaining requirements would not be granted.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has provided orders that effect his promotion to
the pay grade of E-5 on 1 April 1971, his records do not show that he was
ever promoted to that pay grade.

2.  Therefore, absent evidence to the contrary, it must be presumed that
the orders were revoked due to the applicant not taking the steps to extend
his service for an additional 2 months in order to accept the promotion, as
required by the applicable regulation, which would account for his records
being absent of any promotion information.

3.  He was not entitled to be promoted until he took the steps to meet the
service remaining obligation required for that grade and was not entitled
to be REFRAD in that grade as well.  Accordingly, he was properly REFRAD in
the pay grade of E-4.
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 22 April 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 21 April 1974.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sk____  __mhm___  __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.



                                  Stanley Kelley
            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002549                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051129                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |189/corr 214                            |
|1.110.0000              |                                        |
|2.131.0000              |310/prom                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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