MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 October 2000                   
	DOCKET NUMBER:   AR2000043608

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Linda D. Simmons		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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 records be considered for promotion to Master Sergeant (MSG), E-8.

APPLICANT STATES:  That in late 1966 or early 1967 he appeared before the E-8 promotion board.  Five E-7’s were placed on the promotion list.  He was number 5.  An allocation came down for him but the opening was in the 13F military occupational specialty (MOS) series.  His MOS was 71L and he was working in his secondary MOS of 76Y and he did not want to accept a promotion so far from his field.  When he was assigned to Vietnam in 1968, his standing on the E-8 list was not forwarded to Department of the Army when E-8 promotions were centralized and he did not come out on subsequent promotion lists.  He believes he may have been passed over for promotion due to an oversight.  

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

After having had prior service, he reenlisted in the Regular Army on 26 April 1955.  He was promoted to Sergeant First Class (SFC), E-7 on 1 November 1963.

The applicant was apparently placed on a local promotion standing list around late 1966.

The U. S. Total Army Personnel Command (PERSCOM) has confirmed that the first MSG centralized selection board convened on 2 December 1968 to consider those soldiers holding local list status as of 30 September 1968.  PERSCOM has confirmed that the applicant’s name did not appear on the original list of eligibles so he was not considered for promotion by that board.  He was subsequently considered, but not selected, by the next board on 2 June 1969 and following boards.

The applicant retired on 1 May 1974 in the rank and grade of SFC, E-7.

Army Regulation 600-200, in effect at the time, prescribed policies pertaining to career management of Army enlisted personnel, to include enlisted promotions and reductions.  Centralized promotion boards (for promotion consideration to grades E-7, E-8 and E-9) will select the best qualified soldier in each MOS for promotion.  They will recommend a specified number of soldiers by MOS from zones of consideration who are the best qualified to meet the needs of the Army. The total number selected in each MOS is the projected number the Army needs to maintain its authorized-by-grade strength at any given time.  Prior to the time the centralized promotion systems went into effect, individuals could have been recommended for promotion by the unit commander only against authorized position vacancies existing or projected for a 2-month period within the command as announced by the promoting authority.  The individual who was next in line on the order-of-merit-recommended-list to fill the vacancy and for whom a promotion quota was received would be promoted by the losing commander.

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.

The doctrine of laches is defined by Black’s Law Dictionary, sixth edition as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  PERSCOM has confirmed that the applicant had not been considered by the first centralized E-8 promotion selection board but that he had been considered by subsequent boards.  Had the applicant discovered and brought this fact to the Board’s attention earlier, it would have been appropriate to direct that his records be considered by a standby promotion board.  Due to the passage of time, however, favorable consideration of the applicant’s request would be barred by laches if the statute of limitations were waived.  The Board concludes that it is not in the interest of justice to waive the statute.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rvo___  __lds___  __bje___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000043608	
SUFFIX		
RECON		
DATE BOARDED	20001017	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.03	
2.		
3.		
4.		
5.		
6.