IN THE CASE OF:	  

		BOARD DATE:	       5 November 2009

		DOCKET NUMBER:  AR20090010445 


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 records to show he was promoted to master sergeant (MSG)/E-8. 

2.  The applicant states that after he was promoted to specialist six (SP6)/E-6 in 1962 and he was unjustifiably locked into the U.S. Army Local Promotion System in military occupational specialty (MOS) 81B (Construction Draftsman) he remained on the list, at several installations, for 7 years before being promoted to specialist seven (SP7)/E-7.  He was number one on those promotion lists at various locations throughout his period of service, including the period that he served in Alaska.  He was serving a 3-year tour in Alaska and he was to replace the outgoing E-7, but the Army curtailed his overseas tour to 2 years and forced him to relocate to Fort Campbell, KY, therefore, he missed out on an opportunity for promotion.  He adds that for advancement to E7 in MOS 81B, he appeared before and was selected by each local promotion; however, in each case, he was reassigned to another installation or in some cases there was no authorized position available for him.  

3.  The applicant also states, in effect, that he completed the training and was awarded MOS 74F (Computer Programmer) and he worked hard to finally get promoted to E-7.  He states the above actions delayed his promotion to E-7.  He then submitted a request to retire in February 1975 and after his retirement had been approved he received orders promoting him to E-8 in MOS 74Z.  But at that point, he and his family had made plans to retire and a promotion to E-8 would have required a 2-year service commitment.  He believes that if it had not been for the constant delay in his promotion to E-7, he would have been able to retire as an E-8.  He believes that this Board should promote him to E-8 as a result of the foregoing injustice that he experienced.

4.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Report of Separation from Active Duty), dated 28 February 1972, 22 November 1969, 22 November 1966, 22 November 1960, and 20 July 1956; and a copy of page 4 of his 4-page DA Form 2-1 (Personnel Qualification Record), in support of his request.

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's records show he enlisted in the Regular Army (RA) for a period of 3 years on 21 July 1953 in the rank/grade of private (PV1)/E-1.  He completed basic combat and advanced individual training and was awarded MOS 111.10 (Light Weapons Infantry).  He was honorably separated in the rank/grade of specialist three (SP3) on 20 July 1956 and transferred to the U.S. Army Reserve for completion of his Reserve obligation.

3.  The applicant’s records also show he enlisted in the RA for a period of 3 years on 20 February 1958 and he was trained in and held MOS 81B.  He was honorably discharged in the rank of specialist five (SP5)/E-5 on 22 November 1960.

4.  The applicant’s records further show he immediately reenlisted in the RA for a period of 6 years on 23 November 1960 and held MOS 81B.  He was promoted to SP6/E-6 on 23 March 1962, served in Alaska from on or about 10 July 1964 to 28 July 1966, and he was honorably discharged on 22 November 1966.

5.  The applicant’s records also show he immediately reenlisted in the RA for a period of 3 years on 23 November 1966.  He completed the 11-week ADPS Program Specialist Course and was awarded MOS 74F.  He was assigned to Hawaii from on or about 22 December 1968 to 19 December 1970.  During his Hawaii tour, he was promoted to SP7/E-7 on 15 March 1969.  He was honorably discharged on 22 November 1969, for the purpose of immediate reenlistment, and he executed a 3-year reenlistment in the RA on 23 November 1969.  

6.  The applicant’s records also show he served in the Republic of Vietnam from on or about 18 February to 12 December 1971.  During his Vietnam tour, he was honorably discharged for the purpose of immediate reenlistment on 
4 September 1971 and executed a 4-year reenlistment on 4 September 1971. 

7.  In October 1974, the applicant submitted a request for voluntary retirement and on 12 November 1974, Headquarters, Fort Belvoir, VA, published Special Orders Number 219 announcing the applicant’s retirement in the rank of SP7/E-7 effective 1 March 1975.  Accordingly, the applicant was retired on 28 February 1975 and he was placed on the retired list his retired rank of SP7/E-7.  The DD Form 214 he was issued shows his rank as SP7/E-7 and that he completed over 20 years of creditable active service.

8.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) and item 18 (Appointments and Reductions) of his DA Form 2-1 shows the highest rank that he held was SP7/E-7.  

9.  There are no official orders or any other evidence available showing the applicant was promoted to MSG/E-8.

10.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.  

11.  Chapter 7 of Army Regulation 600-200, in effect at the time, provided for promotion to E-8.  It stated, in pertinent part, that control was exercised by all commanders to insure that promotions did not exceed command pay grade vacancies, personnel ceilings, or allotted quotas.  Commanders in the chain of command above the promotion authority were allowed to pool available vacancies at any desirable level to regulate promotions in lower units.  To keep the enlisted grade structure in balance, promotions to a pay grade were not allowed to exceed quotas for that grade, even though quotas for higher grades were not used.  Soldiers who had 18 or more years of active Federal service as of date of appointment to pay grades  E-7, E-8, or E-9 were required to serve a minimum of 2 years' active duty in the higher grade prior to retirement.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show his rank/grade as that of MSG/E-8. 

2.  The evidence of record shows that at the time of retirement, on 28 February 1975, the applicant held the rank of SP7/E-7.  His record is void of any promotion orders to MSG/E-8.  Item 33 of his DA Form 20, and item 18 of his DA Form 2-1, show his rank as SP7/E-7.  

3.  Promotions of enlisted personnel to grades E-5 through E-9 were announced in orders.  In the absence of such orders and/or the authority for this promotion, there is insufficient evidence to grant the applicant the requested relief.  

4.  Additionally, the applicant acknowledged that he understood a promotion to MSG/E-8 required a 2-year service obligation which he did not make.

5.  The applicant's MOS and continued reassignments were considered.  However, there is no evidence that he would have been selected for promotion to SP7/E-7 earlier, and then promoted to MSG/E-8 prior to retirement if he had been stabilized.  There is neither an error nor an injustice in this case.

6.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him the requested relief.

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)                                         AR20090010445



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010445



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1