RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      10 August 2006
      DOCKET NUMBER:  AR20050016027


      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. Stephanie Thompkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 chief warrant officer
four (CW4).

2.  The applicant states he believes he should have been promoted to CW4
prior to his retirement on 29 March 1981.  His projected eligibility date
was 26 January 1981.  He was reviewing his military records and found what
he believes was an error in not being promoted.  He was selected for
promotion to CW4 per Department of the Army (DA) letter, dated 29 February
1980, and was recommended for permanent promotion per DA Circular Number
135-43, dated 1 June 1980.  For some months prior to his retirement, his
understanding of spoken words deteriorated to the point that he did not
feel that it was fair to his supervisors or to the Army Reserve to continue
in his assignment.  He therefore elected to apply for retirement prior to
being promoted.

3.  The applicant provides copies of his Army Commendation Medal orders,
page 2 of his DA 67-7 (US Army Officer Evaluation Report) for the years
1976 through 1979, his 1978 Report of Medical Examination and Audiogram,
his promotion memorandum for CW3, his retirement orders, his selection for
promotion to the next higher grade letter, DA Circular Number 135-43, and a
letter from the Supervisor, Retirements and Annuities, Human Resources
Command – St. Louis, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 March 1981, the date of his placement on the Army of the
United States (AUS) Retired List.  The application submitted in this case
is dated 25 October 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 record shows he was appointed in the USAR, as
a warrant officer one, effective 26 January 1966, with prior enlisted
service.  He was promoted to CW2 effective 26 January 1969 and to CW3
effective 26 January 1975.

4.  Based on the required completion of 6 years time in grade, his
promotion eligibility date (PED) for CW4 was 26 January 1981.

5.  He was issued a Notification of Eligibility for Retired Pay at Age 60,
dated 13 July 1979.

6.  He was considered and selected for promotion to CW4 by the 1980 Reserve
Components Selection Board that convened on 15 January 1980.  DA Circular
No. 135-43, states that the presence of a name on that list did not
constitute a firm forecast of promotion.  Appropriate action would be taken
by the appropriate area commander to issue the promotion letters of those
USAR officers, provided there was a favorable service clearance, they were
medically qualified, and were in a promotable status (active Reserve
status) at the time they completed the service requirements for promotion.

7.  He was issued a promotion selection letter, dated 29 February 1980
which advised of his selection with a projected PED of 26 January 1981.
The letter also advised that to be promoted effective that date, he must
complete the required service, be in an active status, pass security
screening and be medically qualified for retention.

8.  He was separated from the USAR and assigned to the Retired Reserve, as
a CW3, effective 1 July 1979.

9.  He was issued amended Order Number P-05-02269A01, dated 24 June 1981,
showing his placement on the AUS Retired List, in the grade of CW3,
effective 29 March 1981.

10.  In a letter, dated 13 October 2005, the Supervisor, Retirements and
Annuities, Transition and Separations Branch, HRC, advised the applicant
that command could not advance him to the rank of CW4, or make his
correspondence grade CW4, as he was never promoted to or held the rank.
The letter recommended that he petition the ABCMR if he desired to pursue
the issue further and enclosed the necessary form.

11.  The available records do not contain any order that promotes him to
CW4 prior to his separation from the USAR.

12.  Army Regulation 135-155, in effect at the time, prescribed the
policies and procedures for the promotion of Reserve warrant officers.
This regulation specified that promotion to CW4 required completion of 6
years in the lower grade.  An officer removed from an active status before
promotion was final and  would be removed from the promotion list.  An
officer who is transferred to the Retired Reserve would be transferred in
the highest permanent grade or temporary grade satisfactorily held.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to promotion to CW4 prior to 29 March 1981.  He has not shown
error, injustice, or inequity for the relief he now requests.

2.  The applicant's contention that he was selected for promotion to CW4
prior to his retirement with a projected PED of 26 January 1981 has been
noted.   However, the applicant was separated from the USAR 1 July 1979,
prior to his promotion to CW4.  The applicant was transferred to the
Retired Reserve; therefore he was not in an active status for promotion to
CW4 on his PED.  He was transferred to the Retired Reserve, as a CW3, the
last grade he satisfactorily held prior to his separation.

3.  Notwithstanding the documentation submitted in this case, in the
absence of information to the contrary, it is concluded that the applicant
was properly separated as a CW3.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 March 1981, the date of his
placement on the AUS Retired List; therefore, the time for the applicant to
file a request for correction of any error or injustice expired on 28 March
1984.  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

__CLG___  _JBG___  __PMT__  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.




                                  _____Curtis L. Greenway________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016027                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060810                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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