MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        9 December 1998       
	DOCKET NUMBER:   AC98-07844
	                                    AR1998012221

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. Thomas B. Redfern, III		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:  That his military records be corrected to reflect that he was promoted to pay grade E-6 prior to his name being placed on the Temporary Disability Retired List in June 1991.  He states, in effect, that he met the requirements for promotion to E-6 but was told he could not be promoted because he was unable to reenlist or extend to meet the service remaining requirement of 12 months.

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:

He entered active duty in April 1980 and was promoted to pay grade E-5 in September 1984.  In May 1988 he attained promotion list status in the grade of E-6.

In February 1991 the applicant was referred for disability processing as a result of the delayed onset of posttraumatic stress disorder.  At the time he was referred for disability processing the applicant’s scheduled separation date (ETS) was 1 November 1991.

A physical evaluation board determined on 25 February 1991 that the applicant’s condition was not sufficiently stabilized to determine a permanent degree of disability.  As such he was released from active duty effective 1 June 1991 and his name was placed on the Temporary Disability Retired List in pay grade E-5.  After further evaluation he was permanently retired effective 10 September 1992.

Army Regulation 600-200, which established the policies and provisions for enlisted promotions, then in effect, stated that soldiers who met certain requirements could be recommended for promotion to pay grade E-6.  Such individuals would retain promotion list status as long as they remained in a promotable status or met announced promotion point cut-off scores.  Individuals who were not qualified for reenlistment under the provisions of Army Regulation 601-280 were considered to be in a non-promotable status and could not be promoted even if cut off scores were met.

Army Regulation 601-280 required that individuals be medically qualified for retention to be considered eligible for reenlistment.  Hence, and individual who may have met promotion cut off score after the commencement of disability processing could not be promoted until finalization of the disability processing and a determination that they were fit for continued active duty.  A finding that an individual was unfit for continued active duty, resulting in disability separation or retirement, or placement on a Temporary Disability Retired List, effectively terminated an individual’s promotion list status.  

Army Regulation 600-200 also states that individual’s who are returned to active duty from the Temporary Disability Retired List may be promoted if they held promotion list status prior to placement on the disability retired list and equaled or exceeded the DA promotion cutoff scores in his or her recommended specialty.

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 31 May 1991, the date applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 
31 May 1994.

The application is dated 1 December 1997 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

__jh____  __fne___  __tbr___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.