RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 May 2007
      DOCKET NUMBER:  AR20070006213


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey Redmann               |     |Chairperson          |
|     |Mr. Ronald Weaver                 |     |Member               |
|     |Mr. David Tucker                  |     |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 that he be placed on the retired list in the
rank and grade of Master Sergeant (MSG), E-8.

2.  The applicant states that, having attained the rank and grade of MSG, E-
8, he would like to be placed on the retired list in that rank and grade.

3.  The applicant provides two letters of congratulations, both dated
            22 November 1983.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
       which occurred around June 1991, when his active service plus
service on       the retired list totaled 30 years.  The application
submitted in this case is dated 11 November 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, the applicant enlisted in the Regular
Army      on 14 May 1963.  He was promoted to Sergeant First Class (SFC), E-
7 on          1 November 1977.

4.  On 13 July 1983, the applicant applied for retirement to be effective 1
July 1984.

5.  In letters dated 22 November 1983, the applicant was congratulated for
being selected for promotion to MSG, E-8.

6.  Orders were issued on 29 February 1984 releasing the applicant from
active duty effective 30 June 1984 and placing him on the retired list the
date following in the rank of SFC.

7.  There is no evidence of record to show the applicant was promoted to
MSG, E-8.
8.  On 30 June 1984, the applicant was released from active duty in the
rank and grade of SFC, E-7 for the purpose of length of service retirement.
 He had completed 23 years, 1 month, and 2 days of creditable active
service.

9.  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.

10.  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 3961(a) (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.

11.  Title 10, U. S. Code, section 3964 states an enlisted member of the
Regular Army is entitled, when his active service plus his service on the
retired list totals 30 years, to be advanced on the retired list to the
highest grade in which he served satisfactorily on active duty.

12.  Title 10, U. S. Code, section 3992 states an enlisted member who is
advanced on the retired list under section 3964 of this title is entitled
to recompute his retired pay in accordance with this section.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant provided evidence to show he was selected for
promotion to MSG, E-8, there is no evidence of record and he provides none
to show he was actually promoted to MSG, E-8.  Therefore, there is no basis
for advancing him on the retired list to MSG, E-8 as it appears he never
held that rank and grade.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration around June 1991; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired around June 1994.  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

__jcr___  __rjw___  __dwt___  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.




                                  __Jeffrey C. Redmann__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006213                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070524                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |129.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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