RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                 28 FEBRUARY 2006
      DOCKET NUMBER:         AR20050005568


      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. Hubert Fry                    |     |Chairperson          |
|     |Ms. Carol Kornhoff                |     |Member               |
|     |Mr. John Moeller                  |     |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 show that he
was promoted to the pay grade of E-7 and that he be paid all back pay and
allowances.

2.  The applicant states that he was denied promotion to the pay grade of E-
7 in 1985 due to his commander believing that he lacked sufficient time in
grade.  He further states that it is because there was no DD Form 214
showing that he entered the service on 29 August 1973 and because there was
no evidence of his prior service that he was denied promotion to the pay
grade of E-7.

3.  The applicant provides copies of his DD Form 214 dated 26 August 1977
and 11 October 1985, and an illegible DD Form 215 dated 1 March 1988.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the Board consider the applicant’s case based on the
evidence of record.

2.  Counsel states that the issues raised by the applicant amply advance
his contentions and substantially reflect the probative facts needed for an
equitable review.

3.  Counsel provides no additional documents for consideration.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 11 October 1985.  The application submitted in this case was
received on 13 April 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.  He initially enlisted in the Regular Army on 29 August 1973 and served
until he was honorably released from active duty in the pay grade of E-4 on
26 August 1977.

4.  On 4 October 1977, he again enlisted in the Regular Army in the pay
grade of E-4 for a period of 4 years.  He was promoted to the pay grade of
E-5 on 10 June 1978 and to the pay grade of E-6 on 1 October 1983.

5.  On 18 April 1985, nonjudicial punishment (NJP) was imposed against the
applicant for disobeying a lawful order from his first sergeant.  His
punishment consisted of a forfeiture of pay and extra duty.  The imposing
commander directed that the record of NJP be filed on the Restricted Fiche
of his Official Military Personnel File (OMPF).  However, there is no
indication that it was ever filed.

6.  On 24 June 1985, NJP was imposed against him for pawning government
equipment (a Kevlar helmet).  His punishment consisted of 14 days extra
duty and the imposing commander directed that the Record of NJP be filed on
the performance fiche of his OMPF.  However, there is no indication that it
was ever filed.

7. He remained on active duty through continuous reenlistments and on
11 October 1985, he was honorably discharged on the expiration of his term
of service (ETS).  He had served 8 years and 8 days of active service
during his current enlistment for a total of 12 years and 6 days of total
active service.

8.  A review of the applicant’s records shows that his service records
recorded his Pay Entry Basic Date (PEBD) as 29 August 1973 and his Basic
Active Service Date (BASD) as 6 October 1973.  There is no evidence to show
that he was eligible for consideration for promotion to the pay grade of E-
7.

9.  Army Regulation 600-200, in effect at the time, served as the authority
for enlisted promotions and reductions.  It provides, in pertinent part,
that a Centralized Promotion System for promotion to the pay grade of E-7
went into effect on 1 June 1970 and that eligibility for promotion
consideration to the pay grade of E-7, E-8, and E-9 are based on date of
rank (DOR).  Criteria for primary and secondary zones of consideration for
each grade will be announced by Headquarters, Department of the Army (HQDA)
before each board.  No provisions exist whereby a Soldier may decline
promotion consideration.



DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s contention that his commander denied him promotion
because he mistakenly believed that he (the applicant) did not have
sufficient DOR in the pay grade of E-6 and that there was no evidence of
his prior service has been noted and found to be without merit.

3.  The applicant’s records clearly show that his service was documented in
his records and they show his progression to the pay grade of E-6.  The
applicant had 2 years in grade at the time of his discharge and the
applicant has failed to show through the evidence submitted with his
application or the evidence of record, that he was eligible for
consideration and was unjustly denied promotion consideration.

4.  Promotion consideration to the pay grade of E-7 was then and is now
conducted at the HQDA level based on DOR criteria announced before every
board.  Local commanders do not have the authority to establish the DORs to
be considered nor do they have the authority to promote to the pay grade of
E-7.  Such promotions are announced by orders published at the HQDA level
based on approved promotion board proceedings.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 October 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
10 October 1988.  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

___FH __  ____CK _  ___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.




                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005568                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060228                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19851011                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 4                        |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |310/PROMOTION                           |
|1.131.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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