RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                              22 DEC 2005
      DOCKET NUMBER:         AR20050003137


      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. Ted Kanamine                  |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McPherson            |     |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 report of separation be corrected to
reflect that he was discharged in the rank of sergeant (SGT), in the pay
grade of E-5.

2.  The applicant states that in April 1969, shortly before he departed
Vietnam, he was advised by his platoon sergeant that he had been promoted
to the rank of SGT (E-5).  However, he never received any orders effecting
that promotion and believes that they were lost.

3.  The applicant provides a copy of the promotion standing list containing
his name and a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 17 April 1969.  The application submitted in this case was
received on 2 March 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 enlisted in Albuquerque, New Mexico, on 25 April 1966 for a period
of 3 years and training in the Engineer Equipment Maintenance and
Operations Career Management Field.  He completed his basic combat training
at Fort Bliss, Texas, and his advanced individual training (AIT) at Fort
Leonard Wood, Missouri.

4.  Upon completion of his AIT he was transferred to Germany on 6 September
1966, for duty as a construction machine operator.  He was advanced to the
pay grade of E-4 on 22 March 1967 and he departed Germany on 17 April 1968
for assignment to Vietnam.

5.  He arrived in Vietnam on 21 May 1968 and was assigned to the 293rd
Quartermaster Detachment for duty as a forklift loader and operator until
13 November 1968 when he was transferred to the 291st Quartermaster
Detachment for duty as a General Construction Machine Operator.

6.  On 15 March 1969, the applicant was recommended for promotion to the
pay grade of E-5 and his name was placed on a promotion selection list in
rank order based on the number of promotion points awarded.  The
applicant’s overall sequence number was number 20.  The promotion list
specified that promotions would only be made if vacancies existed in a
specific military occupational specialty, provided the individual met all
promotion qualifications at the time.

7.  The applicant departed Vietnam on 17 April 1969 and was transferred to
Fort Lewis, Washington, where he was honorably released from active duty
(REFRAD) in the pay grade of E-4, as an overseas returnee.  He had served
2 years, 11 months and 23 days of total active service.

8.  A review of the applicant’s records shows no indication that orders
were ever published to promote him to the pay grade of E-5.

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.  While the evidence of record does establish that the applicant attained
promotion list standing a month before he departed Vietnam, there is no
evidence in the available records to show that he was actually promoted
prior to his REFRAD.

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 3 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.  Additionally, 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 17 April 1969; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 16 April 1972.  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

____TK _  ____RD _  ____JM  _  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.




            _____Ted Kanamine_________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003137                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051222                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19690417                                |
|DISCHARGE AUTHORITY     |AR 635-200, SPN 411, Sec VIII           |
|DISCHARGE REASON        |REFRAD OS RTN                           |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |189/CORR 214                            |
|1.110.0000              |                                        |
|2.131.0000              |310/PROM                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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