IN THE CASE OF:	  

		BOARD DATE:	        14 AUGUST 2008

		DOCKET NUMBER:  AR20080008618 


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, in effect, that he be advanced to the pay grade of E-4 and that his discharge be changed to reflect that he was discharged by reason of physical disability. 

2.  The applicant states that he should have been promoted to the pay grade of E-4; however, he was never advanced past the pay grade of E-2.  He also states that he should have been given a medical discharge instead of a hardship discharge. 

3.  The applicant provides no additional documents with his application.

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in St Louis, Missouri on 21 December 1973 for a period of 3 years, training as a manual central office repairman and assignment to Fort Hood, Texas.  He completed his basic training at Fort Leonard Wood, Missouri and his advanced individual training (AIT) at Fort Gordon, Georgia.  He was advanced to the pay grade of E-2 on 21 April 1974.

3.  Upon completion of his AIT, he was transferred to Fort Hood on 25 June 1974 for assignment to a signal company in the 2nd Armored Division.  

4.  On 26 August 1974, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty (guard mount).  His punishment consisted of a forfeiture of pay (suspended for 90 days) and extra duty.

5.  On 2 December 1974, NJP was imposed against him for being absent without leave (AWOL) from 18 November to 20 November 1974.  His punishment consisted of a forfeiture of pay and extra duty. 

6.  On 17 January 1975, NJP was imposed against him for being AWOL from 27 December 1974 to 7 January 1975.  His punishment consisted of a reduction to the pay grade of E-1 (suspended until 17 April 1975), a forfeiture of pay, extra duty, and restriction.

7.  On 21 April 1975, the applicant submitted a request for a hardship discharge due to the poor health of his father and his inability to manage the family-owned store in St. Louis.

8.  The applicant’s request for a hardship discharge was approved and on 5 June 1975, he was honorably discharged due to hardship.  He was serving in the pay grade of E-2 and had served 1 year, 4 months, and 17 days of total active service.  He had 29 days of lost time due to AWOL.

9.  The applicant’s medical records are not present for review because they were provided to the Department of Veterans Affairs (VA) in St. Louis.

10.  Army Regulation 600-200, in effect at the time, provided the policies and procedures for promotion of enlisted personnel.  It provided, in pertinent part, that a Soldier would be advanced to the pay grade of E-2 upon completion of
6 months of active Federal service, unless it was stopped by the commander.  Promotions to the pay grade of E-3 and E-4 were not mandatory.  However, promotion to the pay grade of E-3 required 12 months time in service and 4 months time in grade.  Promotion to the pay grade of E-4 required 26 months 
time in service and 6 months time in grade.  Commanders had the authority to grant accelerated promotions to deserving Soldiers provided they did not exceed the 20% limitation imposed on units.  

DISCUSSION AND CONCLUSIONS:

1.  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.    

2.  The applicant’s contention that he should have been promoted to the pay grade of E-3 and E-4 has been noted and found to lack merit.  Promotions to the pay grades of E-3 and E-4 were not mandatory and the decision to advance Soldiers to those pay grades rested solely with the unit commander.   

3.  The applicant had NJP imposed against him 2 months after his arrival at Fort Hood and was under a suspended punishment for 3 months after that, which made him ineligible to be promoted.  Immediately after his suspended punishment was finished, he went AWOL and again NJP was imposed against him.  The following month, NJP was again imposed against him and his punishment included a suspension for 3 months, which again made him ineligible to be promoted.  He was discharged shortly thereafter.  

4.  The applicant’s contention that he should have been medically discharged has been noted and found to lack merit.  The applicant was properly discharged in accordance with the applicable regulations in effect at the time and per his request, with no indication of any violations of any of the applicant’s rights.

5.  The applicant has failed to show through the evidence submitted with his application and the evidence of record that any error or injustice occurred with regards to his promotions and/or discharge.  Accordingly, there appears to be no basis for granting his requests.     

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080008618



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ABCMR Record of Proceedings (cont)                                         AR20080008618



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