BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090017740 


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 reviewed to determine if he should have been promoted to a higher grade and if so, that he be promoted with entitlement to all back pay and allowances.

2.  The applicant states, in effect, that he was promised an accelerated promotion to the pay grade of E-2 and that he was not promoted.  It was standard operating procedure for a Soldier to be promoted to the next rank upon leaving Vietnam; however, in his case he was not promoted to sergeant/pay grade E-5 because the promotions clerk was on leave when he left Vietnam.  He contends he was promoted pay grade E-5 much later and that had he been promoted on time he would have advanced further.

3.  The applicant provides a photocopy of a Certificate of Training Achievement, photocopies of 26 Leave and Earnings Statements, and a photocopy of a FCUSA Form 2093 (Authorization to Establish or Change Norm/Net Pay).

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.  On 9 November 1965, the applicant enlisted in the Regular Army for a period of 3 years and training as a single rotor turbine helicopter maintenance specialist.

3.  He completed basic training at Fort Ord, California on 14 January 1966 and he was granted an advancement to the pay grade of E-2 effective 14 January 1966.  He was transferred to Fort Rucker, Alabama to undergo advanced individual training (AIT).  He completed his AIT and he was transferred to Fort Carson, Colorado on 21 April 1966.

4.  On 29 June 1966, he was transferred to Vietnam and on 2 July 1966, he was advanced to the pay grade of E-3.  On 5 January 1967, he was advanced to the pay grade of E-4.

5.  On 28 June 1967, he departed Vietnam for assignment to Stewart Air Force Base, New York.  He was promoted to the pay grade of E-5 on 22 December 1967.

6.  On 16 September 1968, the applicant was honorably released from active duty.  He had served 2 years, 11 months, and 23 days of total active service.

7.  The leave and earnings statements provided by the applicant are for the most part illegible and provide no real picture of what occurred in the applicant’s case.  In addition to the poor quality, the applicant provided 26 of a minimum of 
36 statements he would have been issued.

8.  The Certificate of Training Achievement provided by the applicant clearly shows the applicant received an accelerated advancement to the pay grade of
E-2 effective 14 January 1966 and the applicant's official personnel records show his advancements were properly posted in his records.

9.  Army Regulation 600-200, in effect at the time, provided the criteria for the promotion of enlisted personnel.  It provided, in pertinent part, that individuals would be automatically advanced to the pay grade of E-2 upon completion of 4 months time in service unless prevented by the commander concerned.  All qualified and promotable personnel in the grade of E-2 could be promoted to the pay grade of E-3 after serving 4 months time in grade as an E-2.  Promotion to the pay grade of E-4 required a minimum of 6 months time in grade and 1 year of service.  Promotion to pay grade E-5 required 8 months of time in grade and 
21 months of service.  Individuals could be granted waivers for time in service for promotion to the pay grades of E-4 and E-5.  Waivers were granted by the respective unit commanders.  Unit commanders were the final authority who determined who were recommended for promotion in their respective units.

DISCUSSION AND CONCLUSIONS:

1.  While it cannot be determined with any degree of certainty based on the available evidence what happened in the applicant’s case some 40+ years ago in regards to his promotions, it appears on the surface that he was advanced in reasonable timeframes.

2.  The unknown in this equation is of course the unit commander’s recommendation at the time; however, the applicant was given an accelerated advancement upon completion of basic training and he was advanced every 6 months through the pay grade of E-4.  He had 1 year in grade and 25 months in service when he was promoted to the pay grade of E-5. 

3.  While the applicant contends that it was standard operating procedure to be promoted upon departure from Vietnam, the applicable regulation provides no such authority and the applicant has failed to provide any such evidence to support this contention.  

4.  It should also be noted that promotions in the Army are not a right or entitlement and promotions are only conferred when individuals have shown through their performance and potential that they are ready to serve at the next higher level and the promotion is approved by the appropriate commander.

5.  Therefore, in the absence of conclusive evidence to show that he was unjustly denied a promotion for which he was fully qualified and recommended for, there appears to be no basis to grant his request.  It must be presumed that what the Army did at the time was in accordance with the applicable regulations and that none of his rights were violated.

6.  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:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.





      _______ _   _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)                                         AR20090017740



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017740



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1