MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:       19 November 1998       
	DOCKET NUMBER:   AC98-05925

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

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Barbara J. Ellis		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including advisory opinion, 
	if any)

APPLICANT REQUESTS:  In effect, that his record be changed to reflect that he was promoted to pay grade E-6.

He states that he served in the Army from November 1965 to August 1968, and served in Vietnam on two occasions, from June 1966 to June 1967, and from February 1968 to May 1968.  He completed training, leadership school, and advanced infantry training, after which he completed airborne training.  Upon his assignment to Vietnam, he worked as a personnel specialist and changed his MOS (military occupational specialty) to that field.  Upon completion of his tour he was assigned to Fort Bragg, and in February 1968 he was notified that he would be returning to Vietnam.  Prior to departing for Vietnam, a senior officer read a Presidential thank you, which also stated in effect, that all soldiers in ranks  E-1 to E-5 regardless of time in service or time in grade would be promoted one grade because of the hardship of the reassignment.  He noted that when promotions were passed out, he and four others were not on the promotion list.  When he returned to Fort Bragg he discovered that his own platoon sergeant had taken action to keep himself and the other four soldiers off the list.  He implies that he might have stayed in the Army if promoted.   

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army for three years on 8 November 1965, completed training as an infantryman, and in June 1966 was assigned to an administrative company of the 1st Cavalry Division in Vietnam as an assistant voucher examiner and was promoted to pay grade E-4.   He completed his tour and returned to the United States at Fort Bragg where he was assigned as a clerk typist.  In November 1967 he was promoted to pay grade E-5.  In February 1968 he proceeded to Vietnam with the 3d Brigade of the 82nd Airborne Division. He returned to the United States in May 1968.  On 1 July 1968 the applicant 
requested early separation from the Army to return to his former occupation as a segregator for a fruit growers [company].  On 3 July 1968 his request was approved.  He was separated from active duty on 8 August 1968 at Fort Bragg with the rank of Specialist Five E-5.  He had 2 years, 9 months, and 1 day of service. 

Army Regulation 600-200, then in effect, provides policies for the career management of enlisted personnel.  Chapter 7 provides for the promotion of enlisted soldiers, and provides for eligibility and selection criteria, to include time in grade, time in service, promotion quota allocations, position vacancy, physical, and educational requirements.  Paragraph 7-15 of that regulation states that promotion authorities may waive any two of the eligibility criteria.  Time in grade for promotion to pay grade E-6 is 10 months in pay grade E-5, with a waiver of one half time in pay grade permissible.  Time in service is 5 years, with 2 years waivable.  In order to be promoted the soldier must be recommended by his unit commander. There is no waiver of this requirement.   Recommendations for promotions will be signed by the recommending official and submitted through command channels to the promoting authority for consideration.  A selection board will be convened to consider and recommend soldiers for promotion.  Promotion of soldiers are announced in orders.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 8 August 1968, the date of his separation from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 8 August 1971.

The application is dated 23 January 1998 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___FNE__  __TAP___  __BJE___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director