RECORD OF PROCEEDINGS

	IN THE CASE OF:      .

	BOARD DATE:            16 December 2003                  
	DOCKET NUMBER:    AR2003090925

	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. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. John N. Slone		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 he be promoted to the pay grade of E-7.

2.  The applicant states, in effect, that he served on active duty for 20 years and that he was informed in writing that he would receive a promotion to the pay grade of E-7.

3.  The applicant provides a copy of an Enlisted Efficiency Report (DA Form 2166-4) completed on 29 May 1973. 

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 31 March 1976.  The application submitted in this case is dated 6 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 on 2 March 1956 and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 31 January 1967.

4.  On 24 October 1967, nonjudicial punishment (NJP) was imposed against him for striking a noncommissioned officer (NCO) in the NCO Club and for destroying property in the Military Police Station Detention Cell.  His punishment consisted of a reduction to the pay grade of E-5 (suspended for 4 months) and a forfeiture of pay. 

5.  On 10 May 1974, the applicant was notified that the Sergeant First Class Promotion Selection Board had determined that he should be barred from reenlistment under the Qualitative Management Program (QMP) based on his record of NJP and his below average military occupational specialty evaluation scores.  The applicant scored a 68 in 1973, when the average for his grade was 108 and scored a 67 in 1974, when the average for his grade was 105.

6.  On 6 September 1975, the applicant submitted a request for voluntary retirement by reason of completion of required service.  He requested his retirement to be effective 1 April 1976.
7.  Accordingly, he was honorably released from active duty on 31 March 1976 and was transferred to the Retired List in the pay grade of E-6, effective 1 April 1976.  He had served 20 years and 28 days of total active service.

8.  A review of the applicant's records fails to show that the applicant was ever selected for promotion to the pay grade of E-7 or that such notification was ever effected.

9.  Army Regulation 600-200, in effect at the time, served as the authority for enlisted promotions.  It provided, in pertinent part, that persons who were barred from reenlistment were in a non-promotable status and would remain in a      non-promotable status until such time as the bar was removed by the appropriate authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was notified in writing that he would be promoted to the pay grade of E-7 is not supported by either the evidence submitted with his application or the evidence of record.

2.  At the time of the applicant's retirement, he was barred from reenlistment and thus was ineligible to compete or accept a promotion.

3.  Accordingly, he was properly retired in the pay grade of E-6, his grade at the time of retirement and the highest grade he held on active duty.  

4.  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.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 31 March 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 March 1979.  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

_SAC___  ___JS__  ___SLP___ 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.  

		Samuel A. Crumpler
		   CHAIRPERSON

INDEX

CASE ID	AR2003090925	
SUFFIX		
RECON		
DATE BOARDED	2003/12/16	
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         1.131.0000	310/PROM	
2.		
3.		
4.		
5.		
6.