MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            17 March 1999     
	DOCKET NUMBER:   AR1999023393

	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:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. James P. Steauve		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 record be corrected to show that he was promoted to pay grade E-7 prior to his medical retirement.  He states, in effect, that neither he nor his unit received notification of his promotion in late 1974.

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:  Several attempts to locate the applicant’s service personnel records have been unsuccessful.  Information contained herein was reconstructed from documents provided by the applicant in response to a letter informing him that records to determine what happened in his case were not available.

The applicant served two initial periods of active duty (6412-6612 and 6703-6910) before reenlisting in January 1970.  During his initial enlistments he performed duties as an airframe repairman and continued in that capacity following his 1970 reenlistment.

He was promoted to pay grade E-6 on 13 January 1970 and as of 12 March 1971 had a physical profile of 1-1-3-1-1-1 which prevented him from crawling, running, jumping and prolonged standing or marching.  His profile also permitted him to wear a back brace.

In September 1974, while assigned to the 568th Transportation Company in Alaska, he was transferred to a medical holding detachment and by December 1974 his record indicates he was undergoing disability processing.  His name was placed on the Temporary Disability Retired List (TDRL) in January 1975 and it appears he was permanently retired by reason of disability in February 1977.  None of the documents associated with his disability processing were available.

At the time the applicant’s name was placed on the TDRL his DA Form 20 (enlisted qualification record) still indicated he was serving in pay grade E-6.  His DA Form 2 (automated personnel qualification record), prepared on 
13 December 1974 shows him in pay grade E-6 with a date of rank of 13 January 1970.

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-7 by a 

centralized promotion selection board.  Such individuals would retain promotion list status as long as they remained in a promotable status or their promotion sequence number was reached.  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 their sequence number came up for promotion.

Army Regulation 601-280 required that individuals be medically qualified for retention to be considered eligible for reenlistment.  Hence, an individual whose sequence number was reached for promotion 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 their promotion sequence number had been reached for promotion purposes by Department of the Army.  There is no evidence, and the applicant has not provided any which confirms he was promoted to pay grade E-7 prior to commencing disability processing and as such no basis to promote him to that grade.

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 in January 1975, the month the applicant’s name was placed on the TDRL.  The time for the applicant to file a request for correction of any error or injustice expired in January 1978.

The application is dated 19 November 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

__tsk___  __owt___  __jps___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999023393	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990317	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 110.00		
2. 142.00		
3.		
4.		
5.		
6.