IN THE CASE OF:	  

		BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130008006 


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 correction of his military records to show he was promoted to the grade of E-7 or advancement on the Retired List to the grade of E-7.

2.  The applicant states he believes that starting in 1965 he was unjustly denied promotion to E-7.  In 1965, the Army promoted all eligible E-6s.  He was an eligible E-6, but was unfairly not promoted.  During several assignments after 1965 he was promised promotion to E-7 and served exceptionally in several E-7 positions; however, he was unfairly never promoted.

3.  The applicant states he was a specialist five (SP5)/E-5 in 1965 when the Army promoted enough noncommissioned officers (NCO) to double the NCO ranks.  All names were submitted for promotion except the seven African-American E-5s.  When they complained to the inspector general and the chain of command they were told nothing could be done about it and it was too late to do anything.

4.  He was referred to the E-6 promotion board when he reported to the 1098th Transportation Company in Qui Nahn, Viet Nam.  Since that time he was promised promotion to E-7 but never received a promotion.  He goes on to describe his duties at the 1098th Transportation Company.

5.  He returned from Viet Nam in 1968 and he was assigned to the Leadership School and Honor Guard at Fort Eustis, VA.
6.  In 1970, he returned to Viet Nam and he was assigned to the 1098th Medium Boat Company, Da Nang.  He described his duties and his abilities to resolve racial conflicts between white and minority Soldiers.  He states he was reassigned to the 544th on Coco Island, off Hue to raise the morale and performance levels of the unit after they suffered a fire in one of the enlisted men's quarters, killing two Soldiers.

7.  He returned to Ft. Eustis and he was assigned to the Honor Guard again.  In mid-1973, he was diagnosed with alcoholism.  On 2 November 1973, he was admitted to the post residential treatment program where he got sober.  When he completed the program he became a mentor and a therapist.  He committed a driving under the influence (DUI) offense and his driver's license was suspended for 6 months while he was in treatment.  

8.  He was returned to his unit and he was assigned to the Riot Control School. He revised the program of instruction to provide more valuable usable training that promoted stronger relations between leaders and subordinates.

9.  The applicant provides no additional evidence in support of his application.

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.  He previously completed 3 years of active service in the Regular Army (RA).

3.  On 29 August 1958, he enlisted in the RA and served continuously until his retirement.

4.  He completed two tours in Viet Nam.  He was assigned to the:

* 1098th Transportation Company from 31 January - 13 September 1967
* 544th Transportation Company from 14 September 1967 - 18 February 1968
* 1098th Transportation Company from 5 July 1970 - 28 February 1971
* 403rd Transportation Company from 1 March - 12 Jun 1971

5.  He was promoted to E-6 on 8 May 1967.  He was awarded primary military occupational specialty (PMOS) 61B (Watercraft Operator) on 30 October 1968.

6.  He was assigned to the 455th Transportation Company at Fort Eustis from 
23 July 1971 - 18 December 1972.

7.  He was assigned to the 870th Transportation Company at Fort Eustis from 
19 December 1972 - 15 August 1973.  During this period he received conduct and efficiency ratings of "Good."

8.  Item 42 (Remarks) of his DA Form 20 (Enlisted Qualification Record) contains a crossed out entry "E7 Promotion Pkt Fwd DA 711007."

9.  His Military Personnel Records Jacket (MPRJ) shows he was considered by the 1973 and 1974 E-7 Department of the Army (DA) Selection Boards.  There is no evidence he was selected for promotion.

10.  On 31 August 1975, he was retired by reason of sufficient service for retirement and placed on the Retired List the following day.  He completed
20 years and 2 days of total active service.  His DD Form 214 (Report of Separation from the Armed Forces of the United States) contains the following entries:

* item 6a (Grade, Rate or Rank) - SSG (staff sergeant)
* item 6b (Pay Grade) - E-6
* item 7 (Date of Rank) - 67 05 08 (8 May 1967)

11.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, governed the promotion of enlisted personnel.

	a.  Prior to 1970 temporary promotions of enlisted personnel of the Active Army to pay grades E-7 through E-9 were made against temporary promotion quota allocations in conjunction with personnel requisition items canceled by Headquarters, Department of the Army (HQDA).

		(1)  Control was exercised by all commanders to ensure that promotions did not exceed command pay grade vacancies, personnel ceilings, or allotted 

quotas.  Commanders in the chain of-command above the promotion authority could pool available vacancies at any desirable level to regulate promotions in lower units.  To keep the enlisted grade structure in balance, promotions to a pay grade could not exceed quotas for that grade, even though quotas for higher grades were not used.  Eligibility requirements for promotion to E-7 included:

* 12 months time in grade (TIG) and 10 years time in service (TIS)
* be in a promotable status
* be recommended or concurred on by unit commander
* attained a score of 110 or higher on last PMOS evaluation
* a projected position vacancy must exist in each command for all individuals recommended for promotion

		(2)  Boards of officers and NCOs were appointed to recommend personnel for promotion to pay grades E-5 through E-9.  A list of the individuals recommended by the board and selected by the promotion authority, in the order they were to be promoted, was published.  The promotion authority could remove personnel from the list for cause at any time.  Boards were convened with such frequency as to ensure that all eligible personnel received equitable consideration for promotion.

	b.  A centralized promotion system has been in effect for the promotion of enlisted personnel to pay grade E-7 since 1 June 1970.   Primary and secondary zones of consideration for each grade are announced before each board.  The names of individuals who are eligible for promotion considerations by a DA board will be published by HQDA.

		(1)  Selections by a DA board are based on impartial consideration of all personnel eligible for promotion in the zone.  Selection boards use the "best qualified" method of selection for promotions.  Selection board action is administratively final.  Centralized Enlisted Selection Boards will not provide specific reasons for non-selection as board members are not required to record their reasons nor are they permitted to divulge any reasons for selection or non-selection.

		(2)  HQDA publishes orders announcing promotions to grades E-7, E-8, and E-9.  Dates of rank are established in order of seniority (sequence numbers as shown on recommended Iist) over the days of the preceding month.  The effective date of promotion for pay purposes will be the date of the promotion order unless a future effective date is specified in the order.

		(3)  Individuals promoted to grade E-7, E-8, and E-9 incur a 2-year service obligation.  Department of the Army promotion orders will include a statement that "Individual promoted to pay grade E-7, E-8, or E-9 automatically incurs a 2-year service obligation prior to non-disability, voluntary retirement."

12.  Title 10, U.S. Code, section 3964, provides the legal authority for advancement on the Retired List.  It states, in pertinent part, that retired Soldiers are entitled, when their active service plus service on the Retired List totals
30 years, to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served while on active duty as determined by the Secretary of the service concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant initially contends he was unjustly denied promotion to E-7 in 1965 when the Army promoted all eligible E-6s.  There is no evidence and he provides no evidence of the Army promoting all eligible E-6s in 1965.  However, he was not promoted to E-6 until 8 May 1967.  Therefore, he was not eligible for promotion to E-7 in 1965.

2.  He then contends he and six other E-5 African-Americans were not submitted for promotion when the Army promoted enough NCOs to double the NCO ranks. However, he has not submitted any substantive evidence to support his contention.  Therefore, it was not considered as a mitigating factor in the determination of his application.

3.  The earliest the applicant would have been eligible for promotion to E-7 was 
8 May 1968, having 12 months TIG and over 12 years TIS.  There are no indications or entries concerning whether he was considered for promotion prior to 1971.  However, there is no requirement for these entries and the reasons for selection or non-selection were not entered in an individual's MPRJ.

4.  There is no explanation for the crossed out entry in the remarks section of his DA Form 20 concerning an E-7 promotion packet.

5.  The evidence does show he was considered for promotion by the 1973 and 1974 E-7 DA Army Selection Boards.  However, there is no evidence he was selected for promotion.  Specific reasons for non-selection are not revealed as board members are not required to record their reasons nor are they permitted to divulge any reasons for selection or non-selection.

6.  In view of the above, there is no basis for granting the applicant's request for promotion to the grade of E-7.
7.  There is also no evidence he satisfactorily served in the grade of E-7 while on active duty.  Therefore, he is not entitled to advancement to E-7 on the Retired List.

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 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)                                         AR20130008006



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ABCMR Record of Proceedings (cont)                                         AR20130008006



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