IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20090021916 


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 he be promoted to the pay grade of E-4.

2.  The applicant states that he was in the hospital in Japan recovering from a gunshot wound and he was never promoted.  He also states he was not aware that he should have been promoted until recently.

3.  The applicant provides a copy of his DD Form 214 and a copy of a letter from his former commander.

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 inducted into the Army of the United States on 
17 November 1964.  He completed basic training at Fort Knox, Kentucky and his advanced individual training as a light weapons infantryman at Fort Jackson, South Carolina before being transferred to Fort Carson, Colorado on 3 April 1965.  He was advanced to the pay grade of E-3 on 17 July 1965.

3.  On 11 September 1965 he was transferred to Fort Riley, Kansas and was assigned to Company A, 1st Battalion, 28th Infantry Regiment, 1st Infantry Division.  On 21 September 1965, he deployed to Vietnam with his unit.

4.  On 17 May 1966, his commander imposed nonjudicial punishment against him for carelessly discharging his service rifle within the perimeter of the base camp.  His punishment consisted of a forfeiture of pay and 7 days of extra duty.

5.  On 2 June 1966, he sustained a gunshot wound to the chest and on 23 June 1966, he was evacuated to the 106th General Hospital in Yokohama, Japan where he remained until he departed on 13 October 1966 for Oakland Army Base, California.

6.  On 14 October 1966, he was honorably released from active duty in the pay grade of E-3 as an overseas returnee.  He had served 1 year, 10 months and
27 days of total active service.

7.  The letter provided by the applicant’s former commander (who was a captain at the time) and is now a retired colonel indicates the applicant should have been promoted during his hospitalization and rehabilitation period; however, the promotion never occurred and the recommendation is that he be promoted at this time.

8.  Army Regulation 600-200, in effect at the time, served as the authority for enlisted promotions.  It provided, in pertinent part, that commanders could promote Soldiers to the pay grade of E-4 who had 6 months time in grade as an E-3 and 1 year time in service.  5 months time in service could be waived by the commander.  It also provides that all deserving individuals in pay grade E-3 may be promoted by the medical facility commander at the time they complete 
6 months time in grade and 12 months time in service and have at least 
3 months time in the hospital.  Promotion quotas were not required.  






DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been promoted to the pay grade of E-4 has been noted; however, there is no evidence in the available records to show that any action was taken to promote him to the pay grade of   E-4 by either his infantry company commander or the hospital commander.

2.  It is further noted that the applicant was eligible for advancement by both commanders and that the hospital commander was not hindered by promotion quotas that were in effect at the time.

3.  While the infantry commander at the time now claims that it must have been an administrative oversight that the applicant was not promoted during his hospitalization period, the commander did not promote the applicant as well.  In fact, just weeks prior the commander punished the applicant for discharging his weapon in the compound.

4.  In any event, promotions to the pay grade of E-4 are made by unit commanders.  While the infantry commander clearly did not promote him while the applicant was in his unit, he does not retain the authority to make such judgments while the Soldier is assigned to a medical holding company.  The authority rested with the hospital commander.  Accordingly, it would be inappropriate at this time to second-guess the judgment of the hospital commander.  There simply is just not enough evidence in the available records to determine if the applicant was deserving of the promotion at the time.

5.  Accordingly, it must be presumed that what the hospital commander did at the time was appropriate under the circumstances.  Therefore, in the absence of evidence to show the hospital commander intended to promote the applicant to the pay grade of E-4 prior to his REFRAD the evidence is not sufficient to grant relief. 

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)                                         AR20090021916



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ABCMR Record of Proceedings (cont)                                         AR20090021916



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