RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            20 JULY 2006
      DOCKET NUMBER:   AR20050017933


      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. William Powers                |     |Chairperson          |
|     |Ms. Marla Troup                   |     |Member               |
|     |Mr. William Crain                 |     |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 his records be corrected to
reflect that he was retired in the pay grade of E-8.

2.  The applicant states, in effect, that he should have been retired in
the pay grade of E-8 because the list was released before his retirement
and he was not informed that his name was on the E-8 promotion list.

3.  The applicant provides a copy of the E-8 promotion list that was
released on 24 January 1979.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 April 1979.  The application submitted in this case is dated
8 December 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 originally served in the United States Navy from 15 June
1956 until he was honorably released from active duty on 10 June 1960.

4.  On 31 March 1961, he enlisted in the Regular Army in San Antonio, Texas
with a dependent waiver for a period of 3 years.  He completed his training
as a supply specialist and remained on active duty through a series of
continuous reenlistments.  He was promoted to the pay grade of E-7 on 18
May 1970.

5.  On 5 January 1977, he was reassigned from Sacramento Army Depot (SAAD)
to Germany for a with dependents tour.  He remained in Germany until he was
granted a reassignment back to SAAD due to extreme personal hardship on
18 October 1978.  He had served only 18 months of a 36 month tour.

6.  On 5 December 1978, while at SAAD, he submitted an Application for
Voluntary Retirement as an exception to policy, as he had not been in the
continental United States for 1 year.  He explained in his application that
because of the circumstances surrounding his early return from Germany, he
elected to settle his family in Dinuba, California, where he had always
intended to retire and where his family could have the moral support of
relatives.  He also stated that it was now apparent that his continuous
presence was vitally necessary to lend support to his daughter and other
family members because of the trauma surrounding the incident for which
they were returned.  He also indicated that he was being considered for
promotion by a Department of the Army selection board and that he desired
to retire on 1 May 1979.

7.  The applicant’s chain of command supported his request and his
application was approved at the Department of the Army on 8 January 1979.

8.  Meanwhile, the master sergeant promotion selection board had convened
on 24 October 1978 and adjourned on 15 November 1978.  The results of that
list were released on 24 January 1979 and the applicant’s name was on the
selected list with a sequence number of 456.  There is no indication that
orders were ever published promoting him to the pay grade of E-8.

9.  On 30 April 1979, he was honorably released from active duty in the pay
grade of E-7 and was transferred to the Retired Reserve, effective 1 May
1979.  He had served 22 years and 27 days of total active service.

10.  Army Regulation 600-200, in effect at the time, provided in pertinent
part, that individuals promoted to the pay grades of E-7, E-8 and E-9 will
incur a        2-year service obligation prior to non-disability, voluntary
retirement and a promoted individual may not, at their own request, be
reduced for the purpose of terminating the service obligation.  Individuals
who were selected for promotion  after their retirement was approved were
allowed to submit a request to withdraw their request provided it was
accomplished within 15 days after the effective date of promotion or 30
days prior to the effective date of retirement, whichever occurred first.
Such requests were approved or disapproved at the Department of the Army
level and were based on the needs of the Army at the time.

DISCUSSION AND CONCLUSIONS:

1.  While the Board cannot determine, some 27+ years after the fact, when
the applicant was actually notified that he was selected for promotion,
there is sufficient evidence in the available records to indicate that he
was cognizant of the fact that he was being considered for promotion when
he submitted his application for retirement as an exception to policy.

2.  The explanation provided by the applicant when he submitted his request
as an exception to policy clearly indicated that he felt it best for the
welfare of his family to retire at that time.

3.  Furthermore, the promotion selection list was released in January 1979
and the applicant was not retired until 1 May 1979.  The likelihood of his
not being aware that he was on the promotion selection list during that
timeframe seems very unlikely.

4.  Inasmuch as the acceptance of the promotion would have caused the
applicant to incur a 2-year service obligation, it must be presumed that he
decided at the time that he should proceed with his scheduled retirement.

5.  While it is indeed unfortunate that he retired before being promoted to
the pay grade of E-8, to grant him the promotion at this time would afford
him a benefit not afforded to others who served their 2-year obligation to
accept the promotion and those who withdrew their retirement application to
accept the promotion.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 April 1979; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 April 1982.  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

___WP_ _  ___MT __  ____WC   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.




                                  _____William Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017933                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060720                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19790430                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |RETIREMENT                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |                                        |
|1.131.0000/310/PR       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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