RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 10 March 2007
DOCKET NUMBER: AR20060012744
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.
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, who retired on 30 November 1966, requests, in effect, that be promoted from staff sergeant (SSG) to sergeant first class (SFC).
2. The applicant essentially states that he never received promotions as promised by the Commanding General, United States Military Assistance Command, Vietnam.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of a card showing that he was awarded the Armed Forces Expeditionary Medal for service in Vietnam, a citation for his award of the Bronze Star Medal with First Oak Leaf Cluster, a self-authored statement, and an extract of his DA Form 20 (Enlisted Qualification Record) in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 30 November 1966, the date of his retirement from the Regular Army. The application submitted in this case is dated 28 August 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 applicants failure to timely file.
3. The applicants military records show that he voluntarily retired from the Regular Army on 30 November 1966 after completing 20 years, 3 months, and 17 days of active duty service. His military records show that the highest rank he held was SSG, which was his rank at the time of his retirement.
4. There is no evidence in his military records, and the applicant did not provide any evidence which shows that he was entitled to a promotion from SSG to SFC.
5. The applicant also did not provide any evidence to support his claim that he was promised promotions by the Commanding General, United States Military Assistance Command, Vietnam.
6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he should have been promoted from SSG to SFC.
2. Although the applicant stated that he was promised promotions by the Commanding General, United States Military Assistance Command, Vietnam, there is no evidence in his military records, and the applicant failed to provide any evidence to corroborate his contention. While the Board does not doubt the veracity of the applicants claim to entitlement to promotion from SSG to SFC, there is no evidence to suggest that he was entitled to a promotion, but was denied it.
3. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit any evidence that would satisfy this requirement. In view of the foregoing, there is no basis for granting relief to the applicant in this case.
4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 November 1966, therefore, the time for the applicant to file a request for correction of any error or injustice expired on
29 November 1969. 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
___KW __ __LD ___ ___EF __ 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.
_____Kenneth Wright________
CHAIRPERSON
INDEX
CASE ID
AR20060012744
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070410
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES 1.
131.0000.0000
2.
129.0400.0000
3.
4.
5.
6.
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