IN THE CASE OF:
BOARD DATE: 5 June 2008
DOCKET NUMBER: AR20080000190
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests correction of his military records to show that he was promoted to master sergeant, pay grade E-8 and that he completed 20 or more years of active duty service.
2. The applicant states, in effect, that it took from 1981 to 1988 to correct his records and that he was still subject to the Uniform Code of Military Justice (UCMJ). So that time should count as active duty. He also contends that he was up for promotion to master sergeant and should be granted that promotion. In 1980, he tried to reenlist but was denied due to a bar to reenlistment.
3. The applicant provides no supporting documentation.
CONSIDERATION OF EVIDENCE:
1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. At the time of his application, the applicant was retired from the Regular Army due to physical disability, in the rank of sergeant first class, pay grade E-7, with 18 years, 1 month, and 10 days active duty service.
3. The applicant enlisted in the Regular Army on 12 March 1963. He served through a series of enlistments with assignments both in the United States and overseas.
4. On 1 July 1974, the applicant was promoted to sergeant first class, pay grade E-7.
5. On 2 October 1975, the applicant reenlisted in the Regular Army. This enlistment was subsequently extended multiple times until his scheduled expiration of term of service (ETS) on 23 April 1981.
6. On 15 August 1977, 18 August 1978, and on 22 August 1980, the applicants records were forwarded for consideration for promotion to master sergeant, pay
grade E-8. There is no evidence showing that he was recommended for promotion.
7. On 10 September 1980, the applicant refused to meet time-in-service requirements for an overseas assignment to the Federal Republic of Germany because he felt that he was medically unfit for the assignment.
8. On 23 September 1980, due to the applicant's refusal to meet the service requirements for the overseas assignment, the Military Personnel Center placed him in a non-promotable status and barred him to further extension or reenlistment for a period of 93 days following his ETS of 21 April 1981.
9. On 21 April 1981, he was discharged with an honorable characterization of service due to completion of required service. He had completed 18 years,
1 month, and 10 days of creditable active duty.
10. On 9 December 1987, this Board considered and granted the applicants request to change his discharge to a retirement due to physical disability.
11. On 20 May 2005, the applicant submitted another application to this Board. In a letter dated 14 March 2006, he was informed by the Director of this Board, that his application was unclear as to exactly what it was he wanted corrected. He was also informed that after his discharge on 21 April 1981 he no longer had a military status and was not subject to the UCMJ.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record clearly shows that the applicant served a total of
18 years, 1 month, and 10 days of creditable active duty and was retired due to physical disability. There is no evidence showing that the applicant had any additional active duty service.
2. The applicants records were considered three times for promotion to master sergeant, pay grade E-8 prior to his discharge and subsequent retirement. There is no evidence showing that he was recommended for promotion. Furthermore, he was barred to extension or reenlistment due to his refusal to meet the service requirements for an overseas assignment and placed in a non-promotable status.
3. In view of the above, the applicants request for additional active duty service credit and promotion to master sergeant, pay grade E-8 should be denied.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ____X___ ___X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
__________X_____________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20070016793
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ABCMR Record of Proceedings (cont) AR20080000190
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