RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           13 December 2005
      DOCKET NUMBER:  AR20050004652


      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:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Allen L. Raub                 |     |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 sergeant major/E-9
(SGM/E-9).

2.  The applicant states, in effect, his promotion sequence number was 23
and he would have been promoted to SGM/E-9 on 1 August 1999.

3.  The applicant provides the following documents in support of his
application:  Department of the Army (DA) Retirement Disapproval
Memorandum, dated
12 January 1998; DA Retirement Disapproval Memorandum, dated 28 May 1998;
DA Retirement Approval Memorandum, dated 12 November 1998; United States
Total Army Personnel Command (PERSCOM) Promotion List Removal Memorandum,
dated 11 January 1999; Request for Retirement Withdrawal
(DA Form 4187), dated 22 February 1999; and Retirement Withdrawal
Memorandum, dated 25 February 1999.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 October 1999.  The application submitted in this case
is dated
23 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 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 military records were not available to the Board.  This
case is being considered using reconstructed records, which primarily
consist of the applicant’s separation document (DD Form 214) and the
documents provided by the applicant.

4.  On 12 January and 28 May 1998, DA disapproved requests for retirement
from the applicant.  On 12 November 1998, DA approved the applicant’s
request for retirement on 1 November 1999.

5.  On 7 December 1998, the applicant was selected for promotion to SGM/E-
9, and on 11 January 1999, the Chief, Enlisted Promotion Branch, PERSCOM,
notified the applicant that he had been considered and selected for
promotion; however, based on his approved retirement, his name was
administratively removed from the promotion list.

6.  On 22 February 1999, the applicant submitted a DA Form 4187 requesting
that his approved retirement for 1 November 1999 be withdrawn in order to
allow him to accept promotion to SGM/E-9.

7.  On 25 February 1999, the applicant submitted a memorandum requesting
that his 22 February 1999 request to withdraw his retirement be cancelled
given he had already been removed from the promotion list by DA.

8.  On 31 October 1999, the applicant was honorably released from active
duty (REFRAD) for the purpose of retirement after completing a total of 22
years,
4 months and 4 days of active military service.  The DD Form 214 he was
issued shows he held the rank of master sergeant/E-8 on the date of his
REFRAD.

9.  Army Regulation 600-8-19 (Enlisted Promotion and Reductions) prescribes
the Army’s enlisted promotions and reductions policy.  Paragraph 1-10
contains guidance on Soldiers in a nonpromotable status.  It states, in
pertinent part, that Soldiers are nonpromotable to a higher grade when a
voluntary retirement application has been approved.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) sets forth the policies for the administrative separation of
Soldiers.  Chapter 12 contains guidance on retirement.  Paragraph 12-8(d)
states, in pertinent part, that Soldiers who have an approved retirement
are in a nonpromotable status, and will not be promoted unless a request
for withdrawal of their retirement application has been approved.

11.  Paragraph 12-15 of the separations regulation contains guidance on
withdrawal of an approved retirement.  It states, in pertinent part, that
in cases not involving a Soldier’s request based on hardship or those not
involving
court-martial, administrative discharge, or physical disability, an
approved retirement may be revoked, or the effective date delayed, based on
the best interest of the Army.  In such situations, requests must be fully
justified.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, Soldiers with an approved retirement are in a non-
promotable status and will not be promoted unless a withdrawal of their
retirement is approved.

2.  The evidence of record in this case confirms the applicant’s retirement
was approved prior to the publication of the promotion list that identified
him for promotion to SGM/E-9, and his name was properly removed from the
promotion list by PERSCOM promotion officials in accordance with the
applicable regulation.

3.  The record further shows that although the applicant did request his
approved retirement be withdrawn on 22 February 1999, he cancelled this
request three days later on 25 February 1998.  As a result, he was properly
REFRAD for retirement on 31 October 1999.

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 31 October 1999.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 30 October 2002.  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

___SLP__  __MHM _  ___ALR _  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.




            ____Shirley L. Powell____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004652                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/13                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1999/10/31                              |
|DISCHARGE AUTHORITY     |AR 635-200 C12                          |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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