RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         3 November 2005
      DOCKET NUMBER:  AR20050003763


      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. Thomas D. Howard              |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Carmen Duncan                 |     |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, that his separation document (DD
Form 214) be corrected to reflect his rank and pay grade as sergeant/E-5
(SGT/E-5).

2.  The applicant states, in effect, that his DD Form 214 and Discharge
Certificate incorrectly show his rank as specialist four/E-4 (SP4/E-4).  He
further states he held the rank and pay grade of SGT/E-5 at the time of his
discharge, and now requests correction of this error for his kids and
himself.

3.  The applicant provides a copy of a Military Pay Voucher (DA Form 2139-
1) in support of is application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 June 1970.  The application submitted in this case is
dated
4 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 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 into the Regular Army and
entered active duty on 21 November 1967.  He was trained in, awarded, and
served in military occupational specialty (MOS) 95B20 (Military Police).
His Enlisted Qualification Record (DA Form 20) shows, in Item 33
(Appointments and Reductions), that he was promoted to the rank and pay
grade of SP4/E-4 on
15 January 1969, and that this is the highest grade he attained and held
while serving on active duty.  His Military Personnel Records Jacket (MPRJ)
contains no orders or documents indicating that the applicant was ever
selected for or promoted to the rank and pay grade of SGT/E-5 by proper
authority during his active duty tenure.

4.  On 30 June 1970, the applicant was honorably separated after completing

2 years, 7 months, and 10 days of active military service.  The DD Form 214
he was issued lists his rank and pay grade as SP4/E-4 in Items 5a (Grade,
Rate of Rank) and 5b (Pay Grade).
5.  The applicant authenticated the DD Form 214 with his signature in Item
32 (Signature of Person Being Transferred or Discharged) on the date of his
separation.  He provides a Military Pay Voucher for the pay period 1
through
31 May 1970, which lists his pay grade as E-5, and indicates he was due the
difference in pay between E-4 and E-5 for the period 9 February through 30
April 1970.

6.  Army Regulation 600-8-19 prescribes the Army's enlisted promotion
policy.  Chapter 3 contains guidance on the semi-centralized promotion
process for the pay grades of E-5 and E-6.  It states, in pertinent part,
that field grade commanders in units authorized a commander in the grade of
LTC or higher have promotion authority to the grades of SGT and SSG;
however, the Promotions Work center maintains the recommended list and
issues the orders.  Promotion to E-5 and E-6 are executed in a semi-
centralized manner.  The field operations function of this semi-centralized
system requires board appearance, promotion point calculation, promotion
list maintenance, and the final execution of the promotions occur in the
field in a decentralized manner.  Neither the current promotion regulation,
nor any previous edition of the promotion regulation provided for automatic
promotion to the pay grade E-5 without a recommendation, selection through
a board process, promotion approval by proper authority, and announcement
of the promotion in orders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his DD Form 214 should be corrected to
reflect his rank and pay grade as SGT/E-5 was carefully considered.
However, the evidence of record confirms the highest rank and pay grade he
attained while serving on active duty was SP4/E-4, and that this was the
rank and pay grade he held on the date of his separation.  This is
evidenced by the entries in Item 33 of his DA Form 20 and in Items 5a and
5b of his DD Form 214.  The applicant authenticated the DD Form 214 he was
issued on the date of his separation with his signature.  In effect, this
was his verification that the information contained on the separation
document, to include the Item 5a and 5b entries, was correct at the time it
was prepared and issued.

2.  The Military Pay Voucher submitted by the applicant was also carefully
considered.  However, absent any evidence of record to confirm he was
promoted to SGT/E-5 by proper authority, this document is not sufficient to
support granting the requested relief at this late date.  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.
3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1970.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
29 June 1973.  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

__ TDH__  ___JI ___  __CD ___  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.




                                  _____Thomas D. Howard____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050003763                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-03                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/06/30                              |
|DISCHARGE AUTHORITY     |AR635-200. . .                          |
|DISCHARGE REASON        |Chapter 5 Overseas Returnee             |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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