RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  18 December 2003
	DOCKET NUMBER:  AR2003088649

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Yolanda Maldonado		Member	
	Mr. James E. Anderholm		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 DD Form 214 (Report of Transfer or Discharge) show his pay grade as E-5.

2.  The applicant states that he was promoted to E-5 prior to his separation.

3.  The applicant provides a copy of a recommended list for promotion to E-5 dated 16 September 1970.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error, which occurred on 28 December 1971, the date of his separation.  The application submitted in this case is dated 21 March 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's military records show that he entered active duty on 23 June 1969 and completed training as a wheeled vehicle mechanic.  He served in Vietnam from 11 November 1969 through 26 October 1970.  He had been promoted to pay grade E-4 effective 14 December 1969.

4.  Effective 20 April 1971 the applicant was reduced to the pay grade of E-3 for misconduct.  There is no evidence of record that shows he was ever promoted again above the pay grade of E-3.  Effective 28 December 1971 he was separated from active duty in the grade of E-3 and transferred to the Army Reserve.

5.  The applicant submits a copy of a recommended list for promotion, dated 16 September 1970, which shows his name as recommended for promotion to specialist five with 493.5 promotion points.  There is no evidence of record to show that he was ever promoted to that grade.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that the highest grade the applicant was ever promoted to was E-4 on 14 December 1969.  Effective 20 April 1971 he was reduced to pay grade E-3 where he remained for the remainder of his service.

2.  There is no evidence of record to show that the applicant was ever promoted to specialist five as listed on the recommended list for promotion.

3.  Records show the applicant should have discovered the error or injustice now under consideration on 28 December 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 December 1974.  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

__ro___  ___ym___  ___ja____  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.

		__Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2003088649	
SUFFIX		
RECON		
DATE BOARDED	20031218	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.