RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 September 2006
      DOCKET NUMBER:  AR20060001627


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Susan Powers                  |     |Chairperson          |
|     |Mr. Jonathan Rost                 |     |Member               |
|     |Mr. David Haasenritter            |     |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 he be advanced on the retired
list to the rank of master sergeant (MSG), E-8.

2.  The applicant states he served as a First Sergeant (1SG) in the Combat
Support Company, 1st Battalion, 40th Armor at Fort Polk, Louisiana for over
a year.  He states he was on the E-8 promotion list in early 1978, but he
retired in May 1978.  He also states there were 3200 names on the E-8
promotion list, and he was number 1241 on the promotion list.

3.  The applicant provides a letter from the commanding officer of the 5th
Infantry Division, Fort Polk, Louisiana; an article from the Army Echoes,
Issue 3, 1999; and his DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge) for the period ending 31 May 1978.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 May 1978.  The application submitted in this case is dated
25 January 2006.

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.  After having had prior service in the U.S. Army Reserve, the applicant
enlisted in the Regular Army on 16 December 1958.  He was discharged on
15 December 1961 at the expiration of his term of service.  He reenlisted
on 16 December 1961 and continued to serve on active duty through a series
of reenlistments.

4.  Headquarters, 25th Infantry Division, Special Orders Number 70, dated
11 March 1970, promoted the applicant to sergeant first class (SFC) with an
effective date of 6 March 1970.



5.  His DA Form 2-1 (Personnel Qualification Record) shows he was laterally
appointed to Platoon Sergeant on 6 March 1970.

6.  Item 38 (Record of Assignments) on the applicant’s DA Form 2-1 shows he
served as a 1SG from 15 August 1977 to 9 September 1977 with the Combat
Support Company, 1st Battalion, 40th Armor at Fort Polk, Louisiana.

7.  In a 27 February 1978 letter, the commanding officer of the 5th
Infantry Division (Mechanized) and Fort Polk, congratulated the applicant
on his recent selection for promotion to MSG.

8.  There are no orders in the applicant’s service records which show he
was promoted to MSG.

9.  On 17 April 1978, the applicant applied for voluntary retirement to be
effective 31 May 1978.  Orders were issued on 18 April 1978 releasing him
from active duty effective 31 May 1978 and placing him on the retired list
the date following in the rank of SFC.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  In pertinent part, it provides that
retired Soldiers, when their active service plus service on the retired
list total 30 years, are entitled to be advanced on the retired list to the
highest grade in which they satisfactorily served on active duty.  When
these Soldiers complete 30 years of service, their military personnel
records are reviewed to determine whether service in the higher grade was
satisfactory.

11.  Title 10, U.S. Code, section 3961(b) states that, unless entitled to a
higher retired grade under some other provision of law, a Regular or
Reserve of the Army not covered by section 3961a) (which discusses
commissioned officers) who retires other than for physical disability
retires in the Regular or Reserve grade that he holds on the date of his
retirement.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant was selected for promotion to MSG on an
unknown date and was congratulated on his selection for promotion in
February 1978.

2.  There are no orders which show the applicant was ever promoted to MSG.



3.  The applicant applied for retirement in April 1978.  Orders were
published on 18 April 1978 which shows he was retired on 31 May 1978 and
placed on the retired list in the rank of SFC.  The applicant elected to
retire even though he had been selected for promotion to MSG.

4.  By statute, an enlisted Soldier who retires for length of service
retires in the grade that he holds on the date of his retirement.  The
applicant held the rank and grade of SFC, E-7 on the date of his
retirement.  Regrettably, since he never held the rank of MSG, he is not
entitled to be advanced to MSG on the retired list.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 June 1978; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 31 May 1981.  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

SP______  JR______  DH______  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.




                                  Susan Powers__________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060001627                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060907                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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