RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            05 FEBRUARY 2004                  
	DOCKET NUMBER:   AR2003090836

	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	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Karen A. Heinz		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 he was promoted to pay grade E-5.

2.  The applicant states that after being in Vietnam for two weeks he was assigned to the M-60 machine gun, putting him in an E-5 slot, that he was a team leader and carried the M-60 nearly three months until he was wounded in combat.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on               4 November 1968.  The application submitted in this case is dated 2 May 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 Regular Army on 11 April 1967, for a period of    2 years.  He completed basic combat training at Fort Benning, Georgia, and advanced individual training at Fort Gordon, Georgia.  He served in Vietnam from November 1967 to February 1968, approximately 3 ½ months.

4.  He was promoted to the pay grades of E-2, E-3 and E-4 on 11 August 1967, 
9 November 1967, and 7 June 1968, respectively.

5.  On 25 January 1968, while serving in Vietnam, the applicant sustained a wound to his left leg, and was returned to Ireland Army Hospital, Fort Knox, Kentucky on 12 February 1968.

6.  On 4 November 1968, as a result of his injury, the applicant was found unfit for military service and permanently retired under the provisions of Army Regulation 635-40, with a combined disability rating of 80 percent.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 1 year, 6 months and 20 days of creditable service.

7.  Army Regulation 600-200, Chapter 7 (Promotion and Reduction), in effect at the time, prescribed policies and procedures governing the promotion of Army enlisted personnel.  It provided in pertinent part, that promotion to Sergeant (SGT) was made against promotion quota allocations established by Headquarters, Department of the Army.  Eligibility requirements included a recommendation from the soldier’s unit commander, which begins the promotion process.  Additional requirements included time in grade and time in service requirements as well as local board appearance.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant’s available records nor did he provide documentation to show that he was recommended for promotion to E-5.

2.  The fact that an individual is assigned an M-60 machine gun is no evidence of being in an E-5 slot, or of being recommended for promotion to E-5.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 4 November 1968; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
3 November 1971.  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

__FNE __  __JPI ___  __KAH__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		____Fred N. Eichorn_______
		        CHAIRPERSON

INDEX

CASE ID	AR2003090836	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040205	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.