RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 March 2007 DOCKET NUMBER: AR20060012136 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. Gerard W. Schwartz Acting Director Ms. Wanda L. Waller Analyst The following members, a quorum, were present: Mr. Kenneth Wright Chairperson Mr. Chester Damian Member Ms. Ernestine Fields Member 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, in effect, that he be retroactively promoted to specialist five/pay grade E-5. 2. The applicant states, in effect, that he should have been promoted because he had the time and (sic) grade. 3. The applicant provides no additional evidence in support of his application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error which occurred on 17 December 1964. The application submitted in this case is undated; however, the application was received in this office on 23 August 2006. 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 limitations 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 17 April 1953. He served in Korea and was honorably discharged on 14 February 1956 for immediate reenlistment. He reenlisted on 15 February 1956 for a period of 6 years. He served as a recovery specialist in Japan and Alaska, attained the rank of specialist four/pay grade E-4, and was honorably discharged on 22 March 1962. He reenlisted on 23 March 1962 for a period of 3 years. 4. On 21 February 1963, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 3 October 1962 to 12 January 1963. He was sentenced to be reduced to E-3 and to forfeit $50 pay per month for 6 months. On 21 February 1963, the convening authority approved the sentence. 5. The applicant was promoted to specialist four/pay grade E-4 effective 18 October 1963. 6. On 9 October 1964, the applicant was convicted by a special court-martial of being AWOL from 8 April 1964 to 12 September 1964. He was sentenced to forfeit $73 pay per month for 6 months and to be confined at hard labor for 6 months. On 12 October 1964, the convening authority approved only so much of the sentence as provided for a forfeiture of $46 pay per month for 6 months and confinement at hard labor for 6 months. 7. On 17 December 1964, the applicant was discharged in the rank of private/pay grade E-1 with an undesirable discharge under the provisions of Army Regulation 635-208 for unfitness. He had completed a total of 10 years, 3 months, and 26 days of creditable active service with 393 days of lost time due to AWOL and confinement. 8. There is no evidence of record which shows the applicant was promoted to specialist five/pay grade E-5 prior to his discharge on 17 December 1964. 9. Chapter 7 of Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated in pertinent part that a court-martial sentence of an enlisted member which, as approved by the convening authority, included a punitive discharge, confinement, or hard labor without confinement, accomplished a reduction to the lowest enlisted pay grade effective on the date of approval by the convening authority. DISCUSSION AND CONCLUSIONS: 1. Evidence of record shows the applicant was reduced to private/pay grade E-1 on 12 October 1964 (date of convening authority’s action) as the result of a special court-martial. There are no promotion orders or other evidence of record which shows he was promoted to specialist five/pay grade E-5 prior to his discharge on 17 December 1964. Therefore, there is insufficient evidence on which to retroactively promote him to specialist five/pay grade E-5. 2. Records show the applicant should have discovered the alleged error now under consideration on 17 December 1964; therefore, the time for the applicant to file a request for correction of any error expired on 16 December 1967. 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 timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING KW____ _CD_____ _EF_____ 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. __Kenneth Wright______ CHAIRPERSON INDEX CASE ID AR20060012136 SUFFIX RECON DATE BOARDED 20070327 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 131.0000 2. 3. 4. 5. 6.