RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 February 2006
      DOCKET NUMBER:  AR20050008798


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Donald L. Lewy                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, promotion to sergeant/E-5 (SGT/E-5),
and medical retirement.

2.  The applicant states, in effect, that after being wounded in action the
Republic of Vietnam (RVN), he was advised that he would be promoted to
SGT/E-5, but he was not.  He states that he was also never considered for a
medical retirement based on the severity of his wounds.  He claims that he
was removed from consideration for promotion based on the severity of his
wounds.  He claims that he would have received this promotion had it not
been for being wounded in action, and he believes he was entitled to it.
He requests his records be corrected to show he was promoted to SGT/E-5,
and that he be granted a medical retirement based on his wounds.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 20 December 1968, the date of his separation.  The
application submitted in this case is dated 28 May 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows that he was inducted into the Army and
entered active duty on 6 April 1967.  He was trained in, awarded and served
in military occupational specialty (MOS) 11B (Infantryman).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows, in
Item 31 (Foreign Service) that he served in the RVN from 13 September 1967
through
10 March 1968.  Item 33 (Appointments and Reductions), that he was promoted
to specialist four/E-4 (SP4/E-4) on 1 January 1968, and that this is the
highest rank he attained while serving on active duty.

5.  Item 38 (Record of Assignments) of the applicant’s DA Form 20 shows
that during his RVN tour, he served with Company B, 4th Battalion, 47th
Infantry Regiment, performing duties in MOS 11B as a light weapons
infantryman.

6.  On 14 February 1968, the applicant was wounded in action in the RVN.  A
Clinical Record Cover Sheet (DA Form 8-275-3) on file shows he received
fragment wounds to the chest, both legs, and his right arm and hands.  His
record also shows that he earned the following awards during his active
duty tenure:  National Defense Service Medal; Purple Heart; Army Good
Conduct Medal; Vietnam Service Medal with 2 bronze service stars; RVN
Campaign Medal; Combat Infantryman Badge; RVN Gallantry Cross with Palm
Unit Citation; and RVN Civil Actions Honor Medal First Class Unit Citation.


7.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
orders, or other documents that indicate the applicant was promoted to
SGT/E-5 by proper authority while he was serving on active duty.

8.  On 13 December 1968, the applicant underwent a separation medical
examination.  The Report of Medical Examination (SF 88) indicates the
purpose of the examination was expiration of term of service (ETS).  This
document notes the applicant fragment wounds.  The examining physician
assigned a Physical Profile of 111111, a Physical Category of A, and he
found the applicant qualified for retention/separation.  The examination
report lists no physically or mentally disqualifying conditions that would
have warranted his separation or retirement processing through medical
channels.

9.  On 20 December 1968, the applicant was honorably released from active
duty (REFRAD) and transferred to the United States Army Reserve (USAR)
Control Group to complete his military service obligation.  The separation
document
(DD Form 214) he was issued at the time confirms he held the rank and pay
grade of SP4/E-4, and that he had completed a total of 1 year, 8 months and
15 days of active military service.  The applicant authenticated this
document with his signature in Item 32 (Signature of Person Being
Transferred or Discharged).

10.  Army Regulation 600-8-19 prescribes the Army’s enlisted promotion
policy.  Chapter 3 contains guidance on the semi-centralized promotion
process for the pay grades of E-5 and E-6.  It states that field grade
commanders in units authorized a commander in the grade of lieutenant
colonel or higher have promotion authority to the grades of E-5 and E-6;
however, the Promotions Workcenter maintains the recommended list and
issues the orders.

11.  The promotion regulation states that promotion to E-5 and E-6 are
executed in a semi-centralized manner.  This includes field operations
consisting of promotion selection board appearance, promotion point
calculation, promotion list maintenance, and the final execution of the
promotions occur in the field in a decentralized manner.  Headquarters,
Department of the Army establishes promotion cutoff scores and the monthly
E-5 and E-6 promotion selection
by-name list are determined and announced monthly based on the needs of the
Army by grade and MOS.

12.  Army Regulation 600-200 (Enlisted Personnel Management) contained the
Army’s policy for enlisted promotions in chapter 7 that were in effect at
the time of the applicant’s separation.  This regulation authorized
promotions to E-4 and E-5 based on periodic quotas provided to commands.
The order of merit for these promotions in most cases was established using
local promotion selection boards.  Promotion had to be authorized by the
proper promotion authority, which at the time for E-5 were field grade
commanders.  Company commanders had the authority to promote only through
the grade E-4.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and sets forth policies, responsibilities, and procedures that apply
in determining whether a Soldier is unfit because of physical disability to
reasonably perform the duties of his or her office, grade, rank, or rating.
 In each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  Separation by reason of disability requires processing
through the PDES.

14.  Chapter 4 of the same regulation contains guidance on processing
through the PDES, which includes the convening of a Medical Evaluation
Board (MEB) to document a Soldier's medical status and duty limitations
insofar as duty is affected by the Soldier's status.  If the MEB determines
a Soldier does not meet retention standards, the case will be referred to a
Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical
disability equitably for the Soldier and the Army.  The PEB investigates
the nature, cause, degree of severity, and probable permanency of the
disability of Soldiers whose cases are referred to the board.  It also
evaluates the physical condition of the Soldier against the physical
requirements of the Soldier's particular office, grade, rank, or rating.
Finally, it makes findings and recommendations required by law to establish
the eligibility of a Soldier to be separated or retired because of physical
disability.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was informed he would be promoted
and that his being wounded in action prevented his promotion was carefully
considered.  However, there is insufficient evidence to support this claim.


2.  The evidence of record confirms the applicant was promoted to the rank
of SP4/E-4 on 1 January 1968, and that this is the highest rank he attained
while serving on active duty.  His record is void of any orders, or other
documents indicating that he was ever selected for, or promoted to a grade
above SP4/E-4 by proper authority while he was serving on active duty.

3.  The applicant’s DD Form 214 confirms he held the grade of SP4/E-4 on
the date of his REFRAD.  The applicant authenticated this document with his
signature on the date of his separation.  In effect, his signature was his
verification that the information contained on the DD Form 214, to include
his rank and pay grade, was correct at the time the document was prepared
and issued.

4.  The applicant’s request for medical retirement was also considered;
however, the SF 88 on file confirms he underwent a separation physical
examination that found no medically disqualifying conditions that would
have supported his processing for disability retirement through the Army
PDES.  The examining physician gave his a Physical Profile of 111111 and a
Physical Category of A, which indicated he was in good physical condition
and had no assignment limitations and he was found qualified for
retention/separation by proper medical authority.

5.  Although the applicant’s active duty service was commendable, and the
sacrifices he made for his country were significant, absent any evidence of
record that shows he was ever promoted to SGT/E-5 by proper authority
during his active duty tenure, or that he suffered from a physically
disqualifying medical condition that would have warranted his retirement
processing through medical channels, there is an insufficient evidentiary
basis to support granting the requested relief at this late date, some 35
years after the fact.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 December 1968, the date of his
REFRAD.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 19 December 1971.  However, he failed to
file within the
3-year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JTM     __LMD __  ___DLL _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____John T. Meixell_____
                    CHAIRPERSON



            INDEX

|CASE ID                 |AR20050008798                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/02/22                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1968/12/20                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  310  |131.0000                                |
|2.  189                 |110.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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