RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           8 December 2005
      DOCKET NUMBER:  AR20050004835


      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:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. Faught               |     |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, retroactive promotion.

2.  The applicant states, in effect, he should have been promoted to the
pay grade of E-5 on three separate occasions.  He claims that at the time
his Army National Guard (ARNG) unit was activated to go to the Republic of
Vietnam (RVN) everyone that had the necessary time in grade (TIG) and time
in service (TIS) was supposed to be promoted to the next rank.  He claims
there were two or three Soldiers, including him, that were supposed to be
promoted who were not because two or three pages of the promotion list got
stuck together.  He states they were told that when the allocations came
down to Fort Carson, Colorado, they would be the first to be promoted.
However, when the allocations did arrive, they were not promoted.  They
were told that since they were going to the RVN, they would be promoted
there and the allocations would be used for troops coming back from the
RVN.  As a result, he went to the RVN as an E-4 instead of an E-5.

3.  The applicant further states that after arriving in the RVN in November
1968, he was assigned to the 3rd Battalion, 60th Infantry Regiment, 9th
Infantry Division.  His unit commander told them he gave everyone a
promotion in his company after they had been in country for 90 days.  He
states that along with his company commander and some other Soldiers, he
was wounded on the last day of February 1969, so he missed another
promotion.  He states at this point, he should have been an E-6, but since
his company commander was wounded so badly, he never got to do the
paperwork.

4.  The applicant also claims that after arriving at Fitzsimmons General
Hospital (FGH), Denver, Colorado in March or early April 1969 and while in
the hospital, he was visited by officers of his old ARNG unit and he
inquired about his promotion. They told him they could do nothing about his
ARNG promotion.  After spending months in the hospital, he was told even a
hospital promotion did not come through.  As a result, he was retired as an
E-4, when he should have been an E-7.  He claims that after his unit
returned home, he was carried absent without leave (AWOL), and he was
discharged in October 1969, but he remained on the ARNG records.

5.  The applicant provides the following documents in support of his
application:  Self-Authored Letter, dated 21 January 2004; Former General
Transmittal of Applicant’s Request, dated 22 October 2004; Former
Commander, Brigadier General (BG), Letter of Support, dated 27 October
2004; and State of Kansas Adjutant General Request for Promotion
Determination, dated 3 November 2004; ARNG Separation Document (NGB Form
22); and Active Duty Separation Document (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 9 October 1969.  The application submitted in this case is
dated
28 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.  The applicant’s record shows he enlisted in the Kansas ARNG on 7 July
1965.  He was trained in and awarded military occupational specialty (MOS)
11C (Infantry Indirect Fire Crewman).  His Enlisted Qualification Record
(DA Form 20) shows, in Item 33 (Appointments and Reductions), that he was
promoted to corporal/E-4 (CPL/E-4) on 10 March 1967, and that this is the
highest rank he attained.

4.  Department of the Army (DA) Message 860302, dated in April 1968,
mobilized the applicant’s ARNG unit, and he entered active duty on 13 May
1968.  He reported to Fort Carson, Colorado on 23 May 1968, and served
there until departing for the RVN on 22 October 1968.

5.  The applicant’s DA Form 20 confirms he arrived for duty in the RVN on
27 November 1968.  He was assigned to 3rd Battalion, 60th Infantry
Regiment, 9th Infantry Division, performing duties in MOS 11C, as a squad
leader and mortar crewman.

6.  On 1 March 1969, the applicant was wounded in action, which resulted in
his medical evacuation to Fitzsimmons General Hospital, where he arrived on

22 March 1969.
7.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
order, or documents that indicated he was ever recommended or selected for
promotion to a grade above E-4 during his tenure on active duty, or that he
was ever promoted to a higher grade prior to his medical retirement.

8.  On 17 September 1969, a Physical Evaluation Board (PEB) convened at FGH
to consider the applicant’s case.  The PEB determined the applicant was
physically unfit for further service and recommended his disability
retirement.

9.  A Data for Retired Pay (AGPZ Form 977), dated 3 October 1969, prepared
during the applicant’s retirement processing shows his rank as CPL/E-4 in
Item 2 (Retired Grade), Item 7 (Highest Grade Held) and Item 18 (Retired
Pay Grade).

10.  Department of the Army Special Orders Number 191, Paragraph 279, dated
3 October 1969, directed the applicant’s released from active duty (REFRAD)
for the purpose of disability retirement on 9 October 1969 and his
placement on the Retired List, in the retired grade of CPL/E-4, on 10
October 1969.

11.  On 9 October 1969, the applicant was REFRAD for the purpose of
disability retirement after completing a total of 1 year, 10 months, and 11
days of active military service.  The DD Form 214 he was issued confirms,
in Items 5a and 5b that he held the rank and pay grade of CPL/E-4 on the
date of his separation.  The applicant authenticated this document with his
signature in Item 32 (Signature of Person Being Transferred or Discharged).


12.  The applicant provides a letter of transmittal from a retired general
officer (GO) that forwarded the applicant’s letter containing his claims
for lost promotion and copies of the applicant’s ARNG records.  In this
letter, this retired GO states that he talked to individuals about what
took place at Fort Carson before the applicant went to the RVN, but no one
had any information supporting the applicant’s claim.  However, one of the
individuals felt the claim seemed reasonable, except for the part about
stuck pages of the promotion list.  This individual stated that he did not
believe the unit would have allowed promotions of an individual scheduled
to leave.

13.  The letter provided by the retired BG who commanded the 69th Infantry
Brigade while the applicant was a member of that ARNG unit states that
while he is unaware of what individuals were told regarding promotions, he
believed the applicant had a legitimate request.  He further states that
the applicant is a double amputee above the knees as a result of wounds he
received in action in the RVN.

14.  The Adjutant General of the State of Kansas forwarded the applicant’s
packet to the Board and requested a review to determine the rank the
applicant should have actually been retired in.

15.  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 that field grade
commanders in units authorized a commander in the grade of lieutenant
colonel or higher have promotion authority to the grades of E-5 and E-6;
however, the Promotions Workcenter maintains the recommended list and
issues the orders.

16.  The promotion regulation states that promotion to E-5 and E-6 are
executed in a semi-centralized manner.  This includes field operations
consisting of promotion selection board appearance, promotion point
calculation, promotion list maintenance, and the final execution of the
promotions occur in the field in a decentralized manner.  Headquarters,
Department of the Army establishes promotion cutoff scores and the monthly
E-5 and E-6 promotion selection
by-name list are determined and announced monthly based on the needs of the
Army by grade and MOS.

17.  Army Regulation 600-200 (Enlisted Personnel Management) contained the
Army’s policy for enlisted promotions in chapter 7 that were in effect at
the time of the applicant’s retirement.  This regulation authorized
promotions to E-4 and E-5 based on periodic quotas provided to commands.
The order of merit for these promotions in most cases was established using
local promotion selection boards.  Promotion had to be authorized by the
proper promotion authority, which at the time for E-5 were field grade
commanders.  Company commanders had the authority to promote only through
the grade E-4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been promoted three
times subsequent to being ordered to active duty and the supporting
documents he provided were carefully considered.  However, there is
insufficient evidence to support this claim.
2.  The evidence of record confirms the applicant was promoted to the rank
of CPL/E-4 on 10 March 1967, and that this is the highest rank he attained
while serving on active duty.  His record is void of any orders, or other
documents indicating that he was ever selected or recommended for promotion
to a grade above CPL/E-4, or that he was ever promoted to a higher grade by
proper authority while he was serving on active duty.

3.  The applicant’s record includes an AGPZ Form 977, which was prepared on
him during his retirement processing.  This document confirms his
authorized retired grade was CPL/E-4, and that this is the highest grade he
held while serving on active duty.  The record also contains the Department
of the Army orders that directed his placement on the Retired List in the
grade of CPL/E-4.

4.  The applicant’s DD Form 214 also confirms he held the grade of CPL/E-4
on the date of his REFRAD for retirement.  The applicant authenticated this
document with his signature on the date of his separation.  In effect, his
signature was his verification that the information contained on the DD
Form 214, to include his grade, was correct at the time the document was
prepared and issued.

5.  Although the applicant’s active duty service was heroic, and the
sacrifices he made for his country were significant, absent any evidence of
record that shows he was ever recommended for, or promoted to grade above
CPL/E-4 by proper authority during his active duty tenure, there is an
insufficient evidentiary basis to support granting the requested relief at
this late date, some 35 years after the fact.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 October 1969, the date of his REFRAD
for retirement.  Therefore, the time for him to file a request for
correction of any error or injustice expired on 8 October 1972.  However,
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

___RTD _  __JBG __  __SWF__  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.




            ____Richard T. Dunbar ____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004835                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/08                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/10/09                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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