RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050012393


      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. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 the DD Form 214 (Armed Forces
of the United States Report of Transfer or Discharge) of her husband, a
deceased former service member (FSM), be corrected to show the rank of
major.

2.  The applicant states, in effect, that the FSM's DD Form 214 should show
the rank of major.

3.  The applicant provides a copy of the State of Louisiana Certificate of
Death, dated 25 May 2005, in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The FSM was commissioned in the United States Army Reserve on
11 September 1953 and served on active duty until he was honorably retired
on 1 October 1973.  The FSM served in Vietnam during the period 10
September 1966 through 8 September 1967.  The FSM served a total of 20
years and 20 days of active service.

2.  Item 5a [Grade, Rate or Rank] of the FSM's DD Form 214 contains the
entry "CPT" [captain].  Item 30 (Remarks) of the FSM's DD Form 214 contains
the following entry, "Item 5A–Temp CPT apdt 25 Feb 60-Perm MAJ apdt 13 June
67 – USAR" [Temporary captain appointment 25 February 1960 – Permanent
major appointment 13 June 1967 – USAR].

3.  On 13 June 1967, the Office of Personnel Operations, Fort Benjamin
Harrison, Indiana, notified the FSM by memorandum that he was selected for
promotion as a Reserve Commissioned Officer of the Army to the rank of
major effective 31 May 1967.  This memorandum further stated that if he is
serving on active duty in a commissioned grade lower that to which
promoted, effective with this promotion, he is deemed to have accepted a
temporary appointment in the grade in which he is serving.

4.  The memorandum continued that the FSM may have elected to be relieved
from active duty and receive his promotion after separation from service
provided he did not have an uncompleted period of required active duty
under law or regulations.

5.  A review of the FSM's service records does not reveal any documentation
that shows he requested to be relieved from active duty to accept the
promotion to the rank of major.
6.  On 6 July 1967, the Office of the Adjutant General, Washington, DC,
notified the FSM by letter that the Department of the Army Promotion
Selection Board considered him for temporary promotion.  The letter
continues that he was among the officers that were not selected for
temporary promotion and that the decision was final.

7.  On 23 February 1968, the FSM was notified by letter that he was
considered by the Department of the Army Promotion Selection Board for
temporary promotion to the rank of major in the Army of the United States
(AUS).  The letter continued that he was among the officers that were not
recommended for promotion.  The letter further stated that this action was
considered as a second "passover"; however, he would not be relieved from
active duty.

8.  The U.S. Army Military Personnel Center, Alexandria, Virginia, Letter
Orders Number S9-125, dated 12 September 1973, approved the FSM's request
for voluntary retirement.  These orders placed him on the retired list
effective 1 October 1973 in the temporary grade of captain and the retired
grade of major.

9.  Title 10, United States Code, section 3961, provides that the retired
grade of a reserved commissioned officer of the Army who retires other than
for physical disability retires in the regular or reserve grade that he or
she held on the date of his or her retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of her late husband's DD Form 214 to
show he retired at the rank of major.

2.  Evidence of record shows that while serving on active duty, the FSM was
selected for promotion to the rank of major in the USAR.  Evidence does not
show he elected to be relieved from active duty to accept that promotion;
therefore, he accepted the temporary appointment in the grade of captain
and continued to serve on active duty.

3.  Evidence of record shows the FSM was considered twice by the Army
Promotion Selection Board for temporary promotion to the rank of major;
however, neither board recommended him for temporary promotion to the grade
of major.

4.  Title 10 of the United States Code states that a reserve commissioned
officer on active duty who retires other than for physical disability will
retire at the regular grade that he or she held on the date of the
retirement.
5.  Evidence shows that at the time of the FSM's retirement, he was serving
in the grade of captain.  Therefore, the FSM's DD Form 214 is currently
correct as constituted.

6.  In order to justify correction of a military record, the applicant must
show to the satisfaction of the ABCMR, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JEV_ __  _BJE___  _DLL_ ___  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.




                                    ___James E. Vick__
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050012393                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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