IN THE CASE OF:	  

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100018725 


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 retroactive promotion to pay grade E-6 effective May 1989 with entitlement to all back pay and allowances.

2.  The applicant states, in effect, he was involved in an automobile accident in which a drunk driver hit his parked patrol vehicle in Germany and he suffered a traumatic brain injury.  He states he was in the hospital when promotion points were recomputed in his absence and he lost points that he otherwise would have retained had he been present.  However, his unit did not protect his interest and he lost promotion points.  He also states he believes he should have retained the points he lost and should have been promoted to pay grade E-6 while he was in the hospital.

3.  The applicant provides copies of his promotion packets, a copy of an undated memorandum requesting recomputation of his promotion points to May 1989, and an incomplete list of promotion cut-off scores.

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 enlisted in the Regular Army on 31 August 1982 for a period of 3 years and training as a military policeman.  He completed training and continued to serve through a series of reenlistments.  He was promoted to pay grade E-5 on 1 October 1985.

3.  On 7 February 1989 while serving in Germany, the applicant was injured when his parked patrol vehicle was hit by a reckless driver.

4.  In December 1989, he underwent a promotion reevaluation and was granted 797 points which would be effective 1 March 1990.

5.  On 1 August 1992, the applicant was retired by reason of temporary physical disability.  He was placed on the Temporary Disability Retired List (TDRL) in pay grade E-5 with a 40-percent disability rating.  He completed 9 years, 11 months, and 8 days of total active service.

6.  On 25 January 1997, he was permanently retired in pay grade E-5 with a 50-percent disability rating.

7.  In the processing of this case, a staff advisory opinion was obtained from the Enlisted Promotion Branch of the U.S. Army Human Resources Command (HRC) at Fort Knox, Kentucky, which opines that the documents submitted by the applicant are insufficient to make a determination as to what the applicant's promotion points would have been during the May 1989 recomputation because all of the documents submitted are dated after that recomputation and would not have been counted.  Officials at HRC opine that the documents submitted by the applicant would not have affected his May 1989 recomputation that would have been effective 1 August 1989.  Officials at HRC recommend that his request be denied.

8.  The advisory opinion was provided to the applicant for comment and he responded to the effect that the Board should consider whether he would have attained the required number of points during the period he was hospitalized to be promoted and not whether he submitted the documentation or whether he was present for the recomputation.  He also states he simply wants equitable treatment by the system.

9.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, provided the criteria for conducting promotion recomputations.  It provided that promotion recomputations for personnel serving in pay grade E-5 would be conducted in May using records dated as of the last day in April and would be in effect on 1 August.  The previous scores would remain in effect until the new scores came into effect.  The DA Form 3355 (Promotion Points Worksheet) is initiated by the unit commander and if recomputations are not accomplished for valid reasons, they will be done at the earliest date possible.  Personnel who meet or exceed the Department of the Army announced cut-off scores will be promoted effective the first of the month.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he met the cut-off scores for promotion to pay grade E-6 during the May 1989 time frame or while he was in the hospital is not in doubt, he simply has failed to show sufficient evidence and explanation that such was the case.

2.  The applicant does not provide sufficient explanation as to what elements of his standing list score were in error at the time and the documents he submits do not readily reflect any errors in his recomputation.

3.  It is also noted that it is difficult at best to determine exactly what happened in his case 20+ years ago.  Therefore, in the absence of sufficient evidence to show his recomputation was in error, there appears to be no basis to grant his request.

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 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 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 him in service to the United States.  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)                                         AR20100018725



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ABCMR Record of Proceedings (cont)                                         AR20100018725



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