IN THE CASE OF:	  

		BOARD DATE:  31 December 2013

		DOCKET NUMBER:  AR20130005226 


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 promotion to pay grade E-5 as a result of being wounded in Vietnam.

2.  The applicant states he was hospitalized for 18 months at the William Beaumont General Hospital (WBGH), El Paso, TX, from wounds he received in Vietnam.  He should have been promoted to pay grade E-5, but he was not.  He was incapacitated and believes the regulations state he should be promoted with the minimum time in grade if he was hospitalized due to war wounds.  It was not until April 2013 that he realized he should have been promoted.

3.  The applicant provides copies of his pay grade E-4 promotion orders, letter from the unit executive officer requesting his promotion consideration to pay grade E-5, and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 in pay grade 
E-1 on 3 April 1967.  He completed training and he was awarded military occupational specialty 11C (infantry indirect fire crewman).  He was promoted to temporary pay grade E-4 on 1 January 1968.  He served in Vietnam from 9 September 1967 through 4 June 1968.

3.  A Standard Form 302 (Clinic Record – Narrative Summary), dated 3 June 1968, shows he sustained multiple fragment wounds on 17 May 1968 in Vietnam as a result of hostile action and was transferred to WBGH.  He was subsequently referred to a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).

4.  The applicant's records contain and he provides a copy of a 24 January 1969 request for his promotion consideration to pay grade E-5.  In the letter, the unit executive officer stated:

	a.  The applicant was a member of that command from September 1967 until he was wounded in May 1968.  During that time he was a squad leader and the chief computer in the mortar platoon.

	b.  The applicant's outstanding proficiency and leadership were to be recognized by promotion to pay grade E-5.  However, he was wounded shortly before he was scheduled to appear before an E-5 board.  He was processed by medical facilities in Japan before being shipped to the continental United States. Therefore, he had not had the opportunity to be considered for promotion action since he was wounded.

	c.  If at all possible, that command requested the applicant's consideration for promotion to pay grade E-5.

5.  On 30 June 1969, a PEB convened and found him medically unfit for further military service and recommended his placement on the Temporary Disability Retired List (TDRL).

6.  He was honorably retired in pay grade E-4 (temporary) on 1 August 1969 by reason of temporary disability.

7.  On 14 May 1971, he was removed from the TDRL and permanently retired in pay grade E-4 with a 40-percent disability rating.

8.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed the policies and procedures pertaining to career management of Army enlisted personnel.

	a.  Paragraph 7-13 stated promotion to pay grade E-5 required completion of 8 months of time in the lower grade.  To be eligible for temporary appointment to pay grade E-5, an individual must be recommended by the unit commander.  There were no provisions for automatic promotion to pay grade E-5 for wounded personnel.

	b.  Paragraph 7-54 stated enlisted personnel otherwise eligible for promotion under this chapter would not be deprived of promotion consideration while hospitalized for extended periods.

	c.  Paragraph 7-54(2) stated individuals without local recommended-list status to pay grade E-5 at the time of hospitalization may be considered for promotion by the local medical facility selection board.

9.  Title 10, U.S. Code, section 3961, provides that each retired member of the Army, unless entitled to a higher grade under some other provision of law, retires in the Regular grade that he/she held on the date of his/her retirement.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to temporary pay grade E-4 on 1 January 1968.  He was wounded on 17 May 1968 while serving in Vietnam.  He was transferred to WBGH.

2.  In a letter, dated 24 January 1969, the executive officer of the applicant's unit requested the applicant's consideration for promotion to pay grade E-5.  He stated the applicant was wounded shortly before he was scheduled to appear before an E-5 board.

3.  A PEB convened and found him medically unfit for further military service and recommended his placement on the TDRL.  He was honorably retired in temporary pay grade E-4 on 1 August 1969 by reason of temporary disability.  



4.  Regulatory guidance specified that temporary promotion to pay grade E-5 required completion of 8 months of time in the lower grade, which would have been 1 September 1968 in the applicant's case.  For him to have been promoted to pay grade E-5, he must have been considered and recommended by a selection board and his name must have been placed on a promotion list.

5.  There is no evidence of record and he provided none to show he was considered and recommended for promotion, temporarily or permanently, to pay grade E-5 by a selection board prior to his retirement.  A retired member of the Army retires in the Regular grade he or she held on the date of retirement.  There is no evidence in the available records and he provided insufficient evidence to support 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 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)                                         AR20130005226



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ABCMR Record of Proceedings (cont)                                         AR20130005226



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