MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           15 August 2000                   
	DOCKET NUMBER:   AR1999033726

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Gail J. Wire 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, the applicant requests that his record be corrected to show retroactive promotion to Sergeant First Class (SFC), pay grade E-7, from 8 July 1975 to a date between August and October 1969, with the restoration of all rights, privileges, and property, and advancement on the retired list to Master Sergeant (MSG), pay grade E-8.  

He states that he was placed on a list for promotion to SFC on 25 June 1969 in MOS (Military Occupational Specialty) 31G40 (Tactical Communication Chief) with 719.8 promotion points.  However, due to an administrative error he was removed from the list, and not promoted until 8 July 1975, well after promotion to the senior ranks under the DA Centralized Promotion System.  He had on several occasions requested that his case be reviewed, but because he had no orders showing he was on a standing promotion list, his request was not favorably considered.  

Several years after he retired, he received his complete promotion packet, discovered errors in the recomputation of his promotion points, which should have been 769.8 points, placing him above another soldier in his MOS, who was promoted in November 1969.  Had his points been properly calculated, he would have been promoted to SFC sometime in August or September of 1969, and been in the primary zone for promotion to MSG E-8 in 1973.  He would have been a MSG before he was eligible for retirement in 1976. 

The applicant provides a copy of his promotion packet, and a paper showing that his promotion points were incorrectly calculated, in that he should have received 50 more points than the number given.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

In a 18 August 1969 letter, Headquarters I Corps (Group) placed the applicant on a recommended list for promotion to pay grade E-7, in MOS 31G40, with 719.8 points.  That letter stated in pertinent part, that personnel on that list had been recommended by a selection board, selected by the commander and were listed in the order they were to be promoted, consistent with MOS requirements, position vacancies, and quotas received.  It went on to say that requisitions for a position vacancy, subsequent cancellation of the requisition, and available quotas, were required for promotion to grade E-7.  Lack of a position vacancy in a given MOS might require promotion of other than the individual with the highest point standing on the list.  Individuals were not guaranteed promotion solely by virtue of inclusion on the recommended list. 

A 17 April 1970 Headquarters I Corps (Group) letter shows the applicant still on the recommended list for promotion to SFC.

On 4 May 1973 the applicant requested to DA that he be considered for promotion based on his previous standing on a promotion list.  He stated that he appeared before a promotion board on 25 June 1969, was placed on a list, and due to a lack of promotion allocations he was not promoted.  After DA centralized promotions to pay grades E-7 and above, those soldiers on a standing list should have been considered for promotion by the DA selection board.  He stated, however, that his name was not on the first DA circular showing that he was considered for promotion, nor was his name on a subsequent circular.  He later found that his promotion packet was still in his military personnel records jacket.  He tried on numerous occasions to have his case reviewed, to no avail.
 
On 28 August 1973, the Military Personnel Center (MILPERCEN) notified the applicant’s major command to inform the applicant that he was eligible for promotion consideration by the DA board which adjourned on                             22 September 1970, and that his record would be referred to the next DA standby board for promotion consideration. 

On 16 January 1974 MILPERCEN notified the applicant’s major command that the applicant’s records were referred to a DA standby board for consideration for promotion under criteria employed by the board which adjourned on                   22 September 1970.  He was considered, but not selected.

The applicant was promoted to SFC effective on 1 August 1975 with a date of rank of 8 July 1975.

The applicant retired on 30 September 1976.  He had 20 years and 11 days of active service.

Army Regulation 600-200, Chapter 7, effective in 1969, provides for promotion of enlisted soldiers to pay grade E-7.  General requirements for promotion to pay grade E-7 included an authorized position vacancy, cancellation of a requisition for that position, and a quota allocation from DA.  Promotions are made from a recommended list by order of merit listing for a given grade and MOS as vacancies occur and quotas are received.  A soldier with promotion list status attained in a previous command will be integrated into the current recommended list of the gaining command.  

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 30 September 1976, the date of his retirement.  The time for the applicant to file a request for correction of any error or injustice expired on 30 September 1979.

The application is dated 14 October 1999 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___tdh___  ___gjw__  ___aao__  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR1999033726	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000815	
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.  21	142.00	
2.	131.00	
3.		
4.		
5.		
6.