IN THE CASE OF:	  

		BOARD DATE:	    21 April 2011

		DOCKET NUMBER:  AR20100022717 


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 reconsideration of the Board's denial of his request to correct his records to show he was promoted to the grade of E-4.

2.  The applicant states that:

	a.  he was not aware of the 3 year statute of limitations provided for in Title 10, U.S. Code, section 1552(b);

	b.  the statement, "THERE ARE INSUFFICIENT BASES TO WAIVE THE STATUTE OF LIMITATIONS FOR TIMELY FILING," is wrong;

	c.  this statement, "THERE IS NO EVIDENCE IN THE AVAILABLE RECORDS TO SHOW THAT ANY ACTION WAS TAKEN TO PROMOTE HIM TO THE PAY GRADE E-4 BY EITHER HIS INFANTRY COMPANY COMMANDER OR THE HOSPITAL COMMANDER," is misstated;

	d.  his platoon sergeant told him before 2 June 1966 that he was next in line for promotion to pay grade E-4, but he was injured and medically evacuated to Japan from the Republic of Vietnam for medical treatment so how could his company commander in the Republic of Vietnam promote him?;

	e.  he takes exception to this statement, "THE AUTHORITY (TO PROMOTE) 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 (HE) WAS DESERVING OF PROMOTION," for he could not promote himself.

	f.  the hospital commander should have taken action to promote him to the grade of E-4 because he was hospitalized for nearly 4 months.  Therefore, he states the hospital commander committed an error by not ensuring he was promoted; and

	g.  an injustice occurred because the commander failed to do his job and promote him for he had been in the hospital commander's unit for over 4 months and was not promoted.

3.  The applicant's provides a personal letter in support of his application.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional comment.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090021916, on 20 July, 2010.

2.  The applicant's arguments are new evidence that warrants consideration by the Board.

3.  The applicant was inducted into the Army of the United States on 17 November 1964.  He completed his initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

4.  He was advanced to pay grade E-3 on 17 July 1965 by Unit Orders Number 31 issued by Company B, 2nd Battalion (Mechanized), 10th Infantry, 5th Infantry Division (Mechanized).

5.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he arrived in the Republic of Vietnam on 21 September 1965. 

6.  On 17 May 1966, he accepted nonjudicial punishment (NJP) for carelessly discharging his service rifle within the perimeter of the base camp.  

7.  On 2 June 1966, he sustained gunshot wounds to his chest from enemy fire and was medically evacuated to 106th General Hospital.  His DA Form 20 shows he arrived at this hospital on or about 23 June 1966 and remained there until his early return from overseas on 13 October 1966. 

8.  The applicant's personnel service record is devoid of unit orders promoting him to the grade of E-4.

9.  On 14 October 1966, he was honorably released from active duty and transferred to the U. S. Army Reserve Control Group (Annual Training) to complete his military service obligation.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Separation) that shows he served for 1 year, 10 months and 27 days.  Item 3a (Grade, Rate or Rank) of his DD Form 214 shows his rank was private first class (PFC) in pay grade E-3. 

10.  Army Regulation 600-200 (Enlisted Personnel Management System) provides for the temporary promotion of enlisted personnel of the Active Army to pay grades E-4 through E-6.  Temporary promotions to these grades are made against periodic temporary promotion quota allocations.  Control was exercised by all commands to ensure that temporary promotions did not exceed command pay grade vacancies, personnel ceilings, or allotted quotas.  For consideration to the temporary grade of E-4, a Soldier must have served 6 months time in grade as a PFC with 1 year time in service.  A Soldier's unit commander must have recommended him for promotion against an authorized position vacancy within their unit.  Temporary appointment to all grades above E-3 will be announced in orders issued by the appointing authority.  It also provides that the medical treatment facility commander may promote all deserving individuals in pay grade E-3 at the time they complete 6 months time in grade and 12 months time in service.  Promotion quotas were not required.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was not aware of the 3-year statute of limitations provided for in Title 10, U.S. Code, section 1552(b) is understood.  However, the Board did review his case.  

2.  He also refutes the factual statement that no evidence was found in his personnel service record to show he was promoted to pay grade E-4.  His contention is that his platoon sergeant had informed him that he was next in line for promotion.   While there is no doubt he was verbally informed he was next in 


line within his infantry company for promotion to pay grade E-4, his record is devoid of a unit promotion order signed by his company commander promoting him to pay grade E-4.  

3.  The applicant's date of rank to PFC was 17 July 1965.  Taking into consideration guidance found in Army Regulation 600-200, he could have been eligible for promotion consideration to grade E-4 with waiver at 6 months time in grade as a PFC and a minimum of 1-year time in service.  Therefore, his earliest estimated promotion eligibility date to pay grade E-4 was 16 January 1966.  From this initial date of eligibility to 2 June 1966, when he was wounded in action and was medically evacuated for treatment, he accepted nonjudicial punishment, in May 1966.  Therefore, it is conceivable that his unit commander did not promote him during this 6 month period due to his minor disciplinary infractions. 

4.  The applicant also contends his hospital commander committed an error by not taking action to promote him to the grade of E-4 because he was hospitalized for nearly 4 months and based on the hospital commander's inaction, the applicant contends he suffered an injustice.  Unfortunately, this is making the unsupported presumption that the applicant's failure to be promoted was an oversight and not a conscious decision. 

5.  Promotion to the grade of E-4 is not automatic nor is it an entitlement.  Promotion of enlisted Soldiers is a function of the unit commander.  Therefore, the unit promotion order promoting him to pay grade E-3 is the acceptable factual evidence to support his separation in pay grade E-3 as recorded on his DD Form 214, dated 16 October 1966.  Thus, there is no error nor did he suffer an injustice. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20090021916, dated 20 July 2010.




      ___________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)                                         AR20100022717





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ABCMR Record of Proceedings (cont)                                         AR20100022717



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