RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           20 November 2003                  
	DOCKET NUMBER:   AR2003087428

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert L. Duecaster		Member	

	The applicant and counsel if any, did not appear before the Board.

	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 that his records be corrected to show that he was promoted to pay grade E-4.

2.  The applicant states that he was told by his first sergeant about a year before he had the accident which resulted in his placement on the Retired List for physical disability that he had recommended him for promotion from pay grade E-3 to pay grade E-4.  He contends that had it not been for his injury, he would have been promoted.  He adds that he would not lie about such a matter.

3.  The applicant provides a letter he sent to the (then) Reserve Component Personnel and Administration Center on 11 April 1983, wherein he requested assistance in being promoted to pay grade E-4.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of injustice which occurred on 21 July 1980.  The application submitted in this case is dated 24 February 2003. 

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 limitation 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 enlisted in the US Naval Reserve on 20 February 1964 and was discharged on 6 July 1964 to enlist in the Regular Navy.  He was honorably discharged from the Regular Navy on 26 August 1964 by reason of erroneous enlistment.

4.  He enlisted in the US Army National Guard (ARNG) on 1 July 1975.  He served as an infantryman in an infantry unit.  He was promoted to pay grade E-3 on 8 August 1978.

5.  At 0300 on 23 August 1978, the applicant fell from the tailgate of a 2 ½ ton truck while on night training with his ARNG unit.  This resulted in his injuring his left knee.

6.  The applicant received medical treatment for his knee in military medical facilities and submitted application for incapacitation pay (full pay and allowances provided to reservists who were injured in line of duty and who were unable to perform their normal military duties).  He was considered by a medical evaluation board and then was transferred to the Retired Reserve on 22 July 1980 due to unfitness for retention.  

DISCUSSION AND CONCLUSIONS:

1.  There is no record of orders being published promoting the applicant to pay grade E-4.  Regardless of whether or not he had been recommended for promotion, orders are required to effect a Soldier’s promotion.

2.  However, the applicant was promoted to pay grade E-3 the same month he was injured.  If his first sergeant recommended him for promotion a year before the accident which resulted in his transfer to the Retired Reserve, the recommendation would have had to been for promotion to pay grade E-3, not 
E-4.  The applicant was in pay grade E-2 a year before the accident.

3.  In addition, the applicant was unable to perform his military duties as a result of that injury, as evidenced by his incapacitation pay.  It would be unlikely that a recommendation for further promotion would be approved under those circumstances.

4.  Records show the applicant should have discovered the error or injustice now under consideration on 21 July 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 21 July 1983.  However, the applicant did not 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___jhl ___  ___lds___  ____rld _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.  

		_________-See attached MFR-______
		        CHAIRPERSON

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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.		
2.		
3.		
4.		
5.		
6.