RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         26 September 2006
      DOCKET NUMBER:  AR20060002888


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Marla J. N. Troup             |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 promoted to master
sergeant/E-8 (MSG.E-8), or appointed to the rank and pay grade of Chief
Warrant Officer Two/W-2 (CW2/W-2)

2.  The applicant states, in effect, after he completed his second tour of
duty in the Republic of Vietnam (RVN) in the spring of 1971, his name was
placed on the Department of the Army (DA) MSG/E-8 promotion list.  He also
claims that during his second tour in the RVN, he applied for CW2 based on
his performance as a Motor Transportation Officer for Advisor Team 1, which
required his presence in all the regions of the 1st Corp area, but was
never awarded the promotion.  He states that he believes his dedication of
service and honorable hard work, plus the responsibility he had while
serving in a combat situation should support awarding him the rank and pay
grade of MSG/E-8, or CW2/W-2.

3.  The applicant provides a Self-Authored Letter to the Board, with 14
documents identified in the list of enclosures, in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 August 1977, the date he was released from active duty
(REFRAD) for retirement.  The application submitted in this case is dated
20 February 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.  The applicant's record shows he initially enlisted in the Regular Army
and entered active duty on 30 July 1955.  He continuously served on active
duty for 22 years, 1 month, and 2 days until 31 August 1977, at which time
he was honorably REFRAD for the purpose of retirement.

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments and Reductions), that he was promoted to sergeant
first class/E-7 on 18 January 1969, and that this is the highest rank he
attained while serving on active duty.  His record also shows that he
earned the following awards during his active duty tenure:  Bronze Star
Medal with 1st Oak Leaf Cluster; Army Good Conduct Medal (3rd Award);
National Defense Service Medal; Vietnam Service Medal with 1 silver service
star and 1 bronze service star; Republic of Vietnam Campaign Medal with
1960 Device; Drill Sergeant Badge; Republic of Vietnam Gallantry Cross with
Palm Unit Citation; and Republic of Vietnam Civil Actions Honor Medal First
Class Unit Citation.

5.  On 4 April 1977, the applicant submitted an application for voluntary
retirement (DA Form 2339).  In this application, he requested to be REFRAD
for retirement on 31 August 1977.  Item 5 (Current Grade, Pay Grade, Date
of Rank) contains an entry confirming he held the rank and pay grade of
SFC/E-7, which he had attained on 18 January 1969.  Item 6 (Highest Grade
Served on Active Duty and Branch of Service) contains an entry confirming
the highest grade he held while serving on active duty in the Army was
SFC/E-7.  The applicant authenticated this document with his signature.

6.  On 14 April 1977, a Headquarters, 1st Corps Support Command Letter
approved the applicant's retirement application, and authorized his REFRAD
on 31 August 1977 and his placement on the Retired List on 1 September
1977.  This letter stipulated that he would be placed on the Retired List
in the rank and pay grade of SFC/E-7.

7.  A Data for Retired Pay (AGPZ Form 977), dated 5 August 1977, that was
prepared on the applicant during his retirement processing contained the
entry SFC/E-7 in Item 2 (Active Duty Grade), Item 3 (Retired Grade), Item 8
(Highest Grade Attained), and Item 10 (Retired Pay Grade).  This document
confirms that he was scheduled to be placed on the Retired List on 1
September 1977, in the rank and pay grade of SFC/E-7.

8.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of any
orders or documents that indicate the applicant was ever selected for
promotion to the pay grade E-8 by a properly constituted promotion
selection board, or that he was promoted to a pay grade above E-7 by proper
authority while serving on active duty.  There are also no documents on
file that indicate he ever applied for, or was selected for appointment as
a warrant officer during his active duty tenure.

9.  On 31 August 1977, the applicant was honorably REFRAD for retirement
after completing 22 years, 1 month, and 2 days of active military service.
The separation document (DD Form 214) he was issued at this time confirms,
in Item 6a (Grade, Rate, or Rank) and Item 6b (Pay Grade), that he held the
rank and pay grade of sergeant first class/E-7 (SFC/E-7) on that date.
Item 7 (Date of Rank) shows he was promoted to SFC/E-7 on 18 January 1969.
The applicant authenticated the separation document with his signature in
Item 29 (Signature of Person Being Separated) on the date of his REFRAD.

10.  Army Regulation 600-8-19 prescribes the Army’s enlisted promotion
policy.  Chapter 4 contains guidance on the centralized promotion process
for the pay grades of E-7, E-8, and E-9.  It states, in pertinent part,
that Soldiers will be selected for promotion to E-7, E-8, and E-9 by a
centralized DA Promotion Selection Board, based on the best qualified as
determined through the collective best judgment of the promotion board
members.  Neither the current regulation, nor any previous edition of the
regulation ever provided provisions for automatic promotion based on years
served and/or overall record of service.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 12 sets policies and procedures
for voluntary retirement of Soldiers because of length of service.
Paragraph 12-3b states, in pertinent part, that retirement will be in the
Regular or Reserve grade the Soldier holds on the date of retirement as
directed in Title 10 of the United States Code, section 3961 (10 USC 3961).
 Paragraph 12-6 contains guidance on the advancement of Soldiers on the
Retired List.  It states, in pertinent part, that retired Soldiers are
entitled to be advanced on the Retired List to the highest grade they held
and in which they satisfactorily served on active duty when their active
service plus service on the Retired List totals 30 years.  The legal
authority for this action is provided by Title 10 of the Untied States
Code, section 3964
(10 USC 3964).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been promoted to MSG/E-
8, or appointed a CW2/W-2 based on his overall record of service was
carefully considered.  However, by regulation, Soldiers must be selected
for promotion to the pay grades E-7, E-8 and E-9 by a properly constituted
promotion selection board and must be promoted by the proper promotion
authority.  Further, a member must formally apply, and be selected for
appointment as a warrant officer by proper authority before that grade can
be bestowed.

2.  Further, by law, Soldiers are retired in the rank and pay grade they
hold on the date of their REFRAD.  Retired Soldiers are entitled to be
advanced on the Retired List to the highest grade in which they
satisfactorily served while on active duty, as determined by the Secretary
of the Army. However, in order to satisfy this requirement, a member must
have been promoted to, held, and served in the higher pay grade while on
active duty.

3.  The evidence of record confirms the applicant was an SFC/E-7 on the
date of his separation.  It also verifies this was the highest pay grade he
attained while serving on active duty.  It also shows he was never selected
for promotion to the pay grade E-8 by a properly constituted promotion
board, and he was never promoted to, held, or served in a higher pay grade
while he was on active duty.  Further, there is no evidence that suggests
he was ever selected for an warrant officer appointment by proper
authority.  As a result, there is an insufficient evidentiary basis to
support the applicant promotion to MSG/E-8, appointment to CW2/W-2, or his
advancement on the Retired List to either of these grades.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 August 1977, the date of his REFRAD
for retirement.  Therefore, the time for him to file a request for
correction of any error or injustice expired on 30 August 1980.  He failed
to 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

___MJNT   __CAD__  __EEM__  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.




                                  _____Marla J. N. Troup___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002888                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/09/26                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1977/08/31                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  319  |131.0900                                |
|2.  310                 |131.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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