IN THE CASE OF:	  

		BOARD DATE:	      6 OCTOBER 2009

		DOCKET NUMBER:  AR20090005727 


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 the records of her late husband, a former service member (FSM), be corrected to show he was posthumously promoted to master sergeant (MSG)/pay grade E-8.

2.  The applicant states the FSM called her from Hawaii in October 1962 to tell her that he had been selected for promotion.  Unfortunately, he became ill and he was medically evacuated from Hawaii to Walter Reed Army Medical Center, Washington, DC.  He was hospitalized, he did not to return to his unit, and he was never promoted.  He was medically retired, and his health continued to decline and prevented him from performing any type of employment.

3.  The applicant provides copies of the FSM’s death certificate; Headquarters, Department of the Army Special Orders Number 171; four separation documents; a 1962 Certificate of Achievement; and a Certification of Military Service.

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 FSM, a career Soldier, served on active duty for over 22 years.  He was promoted to sergeant first class (SFC)/pay grade E-7 (temporary) on 15 March 1961.  This promotion was made permanent effective 2 October 1962.

3.  The available evidence shows that while performing duties in Hawaii, the FSM was referred to a medical board for evaluation of asthma and chronic bronchitis.  He was transferred to Walter Reed General Hospital for further evaluation and treatment on 25 November 1962.  

4.  On 5 June 1963, a Physical Evaluation Board (PEB) found the FSM to be medically unfit for duty and afforded him a 30 percent disability evaluation.  
On 3 July 1963, his condition was determined to be permanent and it was directed that he be retired due to a physical disability.  

5.  Headquarters, Department of the Army Special Orders Number 171, dated 19 July 1963, separated the FSM from active duty and placed him on the Retired List due to physical disability in the rank of SFC/E-7.

6.  The available record contains no evidence that the FSM had been selected for promotion to MSG/E-8 prior to discharge.

7.  The FSM passed away on 31 January 1980.

8.  Title 10, Section 3961(b), United States Code, states an enlisted Soldier will normally retire at the grade held on the date of retirement. 

9.  Army Regulation 624-200 (Promotions, Demotions, and Reductions – Appointment and Reduction of Enlisted Personnel), paragraph 16a(8), then in effect, provided for a Soldier to be promoted in pay grades E-4 through E-9 if the Soldier was physically qualified to perform the duties of the MOS and grade to which the appointment was made.  If a Soldier had physical limitations which prohibited effective performance of the duties of the MOS and grade the Soldier would not be appointed to the higher grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that in October 1962, the FSM informed her that he had been selected for promotion to MSG/E-8.  However, he became ill and he was medically retired, but he was never promoted.
2.  The FSM was temporarily promoted to SFC/E-7 on 15 March 1961 and the promotion was made permanent effective 2 October 1962.  On 19 July 1963, the FSM was separated from active duty and placed on the Retired List due to physical disability in the rank of SFC/E-7 after completing over 22 years of service.

3.  There is no evidence available to show the FSM was on the E-8 promotion list at the time of discharge or to corroborate the applicant’s contention.  In addition, even if the FSM had been on an E-8 promotion list, because he was not physically qualified to perform his duties he could not have been promoted.  Regrettably, there appears to be insufficient evident that would warrant granting the requested relief.  

4.  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)                                         AR20090005727



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005727



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1