IN THE CASE OF:	

		BOARD DATE:	  16 October 2008

		DOCKET NUMBER:  AR20080011671 


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 that his records be corrected to show he was promoted to Corporal (CPL), E-4.

2.  The applicant states that he feels he should have been promoted to Corporal. He was performing the duties of an E-4, but he was never promoted.  He had about two years in grade as a Private First Class (PFC), E-3.  He should have been promoted to at least the rank of Corporal due to the length of time he served in the Army and due to being wounded.  He had no contact with the Army while he was a patient at the Philadelphia Naval Hospital.  He felt abandoned by the Army for he was the only Army patient at the hospital.  

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), in support of 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 the Regular Army on 6 January 1964.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 112.10 (Infantry Indirect Fire Crewman).

3.  On 7 April 1964, the applicant was assigned to Company C, 2d Battalion,  28th Infantry, Fort Riley, KS.  Item 33 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) showed he performed duties as a forward observer in MOS 112.60 for the period 7 April 1964 through 9 November 1966 (sic). 

4.  The applicant’s DA Form 24 (Service Record) shows he performed duties in MOS 112.10 during the period 7 April 1964 to 14 July 1964.  It then shows he performed duties in MOS 112.60 for the period 15 July 1964 to 15 September 1965, but this entry was deleted and a new entry shows he performed duties in MOS 11C1O (converted MOS) from 15 July 1965 to 5 October 1965.  It also shows he performed duties in MOS 11C1O from 6 October 1965 to 30 November 1965 while assigned at U.S. Army Pacific (USARPAC).

5.  The applicant’s DA Form 24 showed he was promoted to PFC, E-3, on
8 September 1964.  

6.  On 6 October 1965, the applicant arrived in Vietnam with his unit.  He was wounded in action on 20 November 1965 and was medically evacuated from Vietnam on or about 30 November 1965.  He was assigned to Valley Forge General Hospital on or about 26 July 1966.

7.  On 10 November 1966, the applicant was permanently retired by reason of physical disability (amputation of his left thumb) in the rank and grade of PFC,
E-3.

8.  Army Regulation 624-200 (Appointment and Reduction of Enlisted Personnel), effective 1 July 1962, section III, governed the temporary appointment of enlisted personnel of the active Army to pay grades E-4 through E-9 made against periodic temporary appointment quota allocations issued by Headquarters, Department of the Army.  The regulation stated that control would be exercised by all appointment authorities to ensure that appointments did not exceed local pay grade vacancies, major command ceilings, or allotted quotas.


9.  Army Regulation 624-200 was superseded by chapter 7 of Army Regulation 600-200 (Enlisted Personnel Management System), effective March 1965. Paragraphs 7-13 and 7-14 of Army Regulation 600-200 provided the same guidance as noted in Army Regulation 624-200.

10.  Army Regulation 600-200, change 1 (dated 9 July 1965), paragraph 7-12.1, stated that enlisted personnel otherwise eligible for promotion to a higher pay grade under this regulation would not be deprived of consideration for such promotion while missing, captured, or detained as a result of hostile action.  

11.  Army Regulation 600-200, change 6 (dated 24 May 1966), paragraph 7-12, stated that enlisted personnel otherwise eligible for promotion to a higher pay grade under this regulation would not be deprived of consideration for such promotion while missing, captured, detained, or hospitalized as a result of hostile action.  Paragraph 7-12e(1) stated that, in the case of personnel who were transferred to a medical facility, the losing promotion authority could include with the individual’s personnel records a recommendation for his promotion which clearly established his eligibility and his promotable status on the date of transfer. 

12.  Army Regulation 600-200, change 6, paragraph 7-12e(2), stated that medical facility commanders with promotion authority could promote personnel assigned as patients and so recommended.  The Soldier need not have occupied a position vacancy of a higher rank or pay grade or be physically qualified to perform duties of the MOS and grade to which appointment was to be made.  However, individuals possessing physical limitations which prohibited effective performance of duty in the next higher grade would not be appointed.

13.  Army Regulation 611-201 (Enlisted Military Occupational Specialties), dated 15 June 1960, stated the MOS code consisted of three basic digits and two suffix digits, each succeeding digit of which provided for more precise identification of the occupational characteristics of the man or job it coded.  It stated the fourth digit (the first suffix) in combination with the preceding three digits indicated the various specialist and noncommissioned officer (NCO) skill levels within the MOS.  NCO or supervisor levels were identified by digits “6” through “9.”

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that there is some evidence of record to show the applicant may have performed the duties of an NCO.  

2.  Unfortunately, there is no evidence of record to show that the applicant was recommended for promotion prior to his being hospitalized.  Even if he had the time in grade and time in service requirements at that time, at this point in time there is no evidence to indicate why he was not recommended for promotion (e.g., there may have been no local pay grade vacancies or no allotted quota or such a promotion may have exceeded the major command’s ceilings for that pay grade).  It must be presumed that his commander had a valid reason for not recommending him for promotion.

3.  There is no evidence of record to show why the medical facility commander did not promote the applicant; however, again, there is no evidence of record to show that he had been recommended for promotion.  More importantly, the regulation at the time stated that individuals possessing physical limitations which prohibited effective performance of duty in the next higher grade would not be appointed to the next higher grade.  Since the applicant was retired for disability, it is presumed that his disabilities prohibited his effective performance of duty in MOS 11C.

4.  Regrettably, there is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____XX____  _____XX___  _____XX___  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.



      _______XXXX______________
               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)                                         AR20080011671



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ABCMR Record of Proceedings (cont)                                         AR20080011671



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