IN THE CASE OF:	  

		BOARD DATE:	        24 MARCH 2009

		DOCKET NUMBER:  AR20080015564 


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 a review of his military personnel records jacket (MPRJ) to determine if he should have been promoted to the pay grade of E-5 prior to his discharge.  

2.  The applicant states, in effect, that he was on the promotion standing list for promotion to the pay grade of E-5 and desires to know if he was in fact promoted to the pay grade of E-5 before he was discharged.  He goes on to state that he previously did not know how to make such a request. 

3.  The applicant provides a copy of his permanent change of station orders from Vietnam to Fort Riley, Kansas; a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); and a copy of the promotion standing list from his unit in Vietnam.

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 was born on 1 February 1948 and enlisted in the U.S. Army Reserve (USAR) on 20 May 1970 for a period of 6 years under the Delayed Entry Program (DEP).

3.  On 30 August 1970, he was discharged from the DEP and enlisted in the Regular Army on 31 August 1970 for a period of 3 years and training in the clerical career management field.  He completed his basic combat and advanced individual training as a clerk at Fort Knox, Kentucky.  He was then transferred to Fort Benjamin Harrison, Indiana for additional training as a pay disbursing specialist.

4.  He completed his training and was transferred to Vietnam on 6 March 1971 for duty as a pay specialist with the 64th Finance Service in Da Nang.  He was advanced to the pay grade of E-3 on 17 March 1971 and to the pay grade of E-4 on 15 June 1971.

5.  On 18 December 1971, he was selected for placement on the E-5 promotion standing list.  The promotion standing list was published on 21 December 1971 and the applicant was the fifth person on the standing list in his military occupational specialty (MOS) of 73C2O, with 602.8 promotion points.  The promotion list specified that promotions would be made by cut-off scores as announced by the Department of the Army. 

6.  The applicant departed Vietnam on 19 January 1972 and was transferred to Fort Knox, where he applied for early separation to join an Army National Guard (ARNG) unit.

7.  On 6 March 1972, he was honorably released from active duty (REFRAD) in the pay grade of E-4 in order to join an ARNG unit.  He had served 1 year, 6 months, and 6 days of total active service.

8.  On 25 March 1972, he enlisted in the Kentucky Army National Guard (KYARNG) in the pay grade of E-4, for a period of 18 months.  He continued to serve in the KYARNG until he was honorably discharged from the KYARNG in the pay grade of E-4, due to the expiration of his term of service (ETS) and was transferred to the USAR Control Group (Annual Training), where he remained until he was honorably discharged from the USAR in the rank of SP4 on 1 May 1976.
9.  On 17 September 2002, in response to a congressional inquiry on behalf of the applicant in which the applicant was requesting that his DD Form 214 be corrected to show that he was promoted to the pay grade of E-5, officials at the USAR Personnel Command informed the member of Congress that a promotion standing list was insufficient documentation to correct a DD Form 214 because it was not a promotion order.  Officials also noted that the highest grade he held was that of SP4 and advised him that he could apply to this Board.

10.  A review of the applicant's official records shows no evidence that the applicant was ever promoted to the pay grade of E-5 or that he ever made a Department of the Army announced cut-off score before he was REFRAD on 6 March 1972.

11.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7 of the version in effect at the time, governed the promotion of enlisted Soldiers.  In pertinent part, it stated that an individual next in line for promotion would be promoted to fill a vacancy and for whom a promotion quota was received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been promoted to the pay grade of E-5 prior to his discharge has been noted and appears to lack merit.  

2.  The applicant has failed to show through the evidence submitted with his application and the evidence of record that he was ever promoted to the pay grade of E-5 or that he ever met or exceeded the Department of the Army announced cut-off score for his MOS.

3.  The applicant was recommended for promotion in December 1971 while in Vietnam, and he was the fifth person on the standing list in his MOS of 73C2O.  The applicant departed Vietnam in January 1972.  It is speculative to presume that he would have been promoted before he departed Vietnam.  He arrived at Fort Knox on 19 January 1972 and was REFRAD on 6 March 1972.  It is also speculative to presume that he would have been promoted while at Fort Knox before he REFRAD.

4.  Therefore, in the absence of evidence showing he was actually promoted, it must be presumed that what the Army did at the time was correct and in accordance with applicable regulations in effect at the time.  The burden of proving otherwise rests with the applicant.

5.  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. 

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.



      ________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)                                         AR20080015564



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ABCMR Record of Proceedings (cont)                                         AR20080015564



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