RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 October 2005 DOCKET NUMBER: AR20050001835 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. Joseph A. Adriance Analyst The following members, a quorum, were present: Mr. Melvin H. Meyer Chairperson Mr. Allen L. Raub Member Ms. Linda D. Simmons 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, promotion to the pay grade E-7. 2. The applicant states, in effect, he should have been promoted to the pay grade of E-7 as was promised to him. He claims that he was not promoted due to the corruption, dereliction of duty by officers and first sergeants of the units he served in. 3. The applicant provides a letter from his daughter written on his behalf in support of his application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice that occurred on 30 June 1962. The application submitted in this case is dated 25 January 2005. 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’s record shows he initially enlisted in the Regular Army and entered active duty on 8 April 1946. His Service Record (DA Form 24) shows, in Section I, that he was promoted to the rank and pay grade of sergeant first class/E-6 (SFC/E-6) on 25 February 1956, and that this is the highest rank he attained while serving on active duty. 4. The applicant’s Military Personnel Records Jacket (MPRJ) is void of any orders or documents that indicate the applicant was ever selected for promotion to the pay grade E-7 by a properly constituted promotion selection board, or that he was promoted to a pay grade above E-6 by the proper promotion authority. 5. On 26 February 1962, the applicant submitted an application for retirement (DA Form 2339), in which he requested to be retired on 30 June 1962, in the retired grade of SFC/E-6. 6. On 29 June 1962, The Adjutant General notified the applicant’s unit commander that the applicant’s retirement was approved and announced in Department of the Army (DA) Special Orders Number 154, Paragraph 115. These orders authorized the applicant’s release from active duty (REFRAD) for retirement on 30 June 1962, and his placement on the Retired List on 1 July 1962, in the retired grade of SFC/E-6. 7. On 30 June 1962, the applicant was REFRAD after completing a total of 22 years and 4 months of active military service. The DD Form 214 he was issued at that time confirms he held the pay grade E-6. The applicant authenticated this document with his signature in Item 34 (Signature of Person Being Transferred or Discharged). 8. The applicant’s Military Personnel Records Jacket (MPRJ) is void of any orders or documents that indicate the applicant was ever selected for promotion to the pay grade E-7 by a properly constituted promotion selection board, or that he was promoted to a pay grade above E-6 by the proper promotion authority. 9. On 18 July 2000, the Director of the Army Board for Correction of Military Records returned the applicant’s application for advancement to the pay grade of E-7 on the Retired List. The applicant was advised that because he was retired in the highest rank and pay grade he held while serving on active duty, he was not eligible for advancement on the Retired List under the provisions of Title 10 of the United States Code, Section 3964. 10. The applicant’s daughter submits a statement on behalf of the applicant. In it, she claims her father was deserving of promotion based on his outstanding record of service to the country during two wars. She also alleges that her father was unfairly denied promotion by a commander who instead promoted his driver and by a first sergeant who gave the promotion the applicant was due to another Soldier who allowed the first sergeant to sleep with his wife. 11. Army Regulation 600-8-19 prescribes the Army’s enlisted promotion policy. Chapter 4 contains guidance on the centralized promotion process for the pay grades of E-7, E-8, and E-9. It states, in pertinent part, that Soldiers will be selected for promotion to E-7, E-8, and E-9 by a centralized DA Promotion Selection Board, based on the best qualified as determined through the collective best judgment of the promotion board members. The promotion policy in effect at the time of the applicant’s retirement required a recommendation by a properly constituted local promotion selection board and authorization for promotion by the proper authority. Neither the current promotion regulation, nor any previous edition of the promotion regulation ever provided provisions for automatic promotion based on years served and/or overall record of service. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service. Paragraph 12-3b states, in pertinent part, that retirement will be in the Regular or Reserve grade the Soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961). Paragraph 12-6 contains guidance on the advancement of Soldiers on the Retired List. It states, in pertinent part, that retired Soldiers are entitled to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty when their active service plus service on the Retired List totals 30 years. The legal authority for this action is provided by Title 10 of the Untied States Code, section 3964 (10 USC 3964). DISCUSSION AND CONCLUSIONS: 1. The applicant’s contention that he was unjustly denied promotion as a result of corruption on the part of members of his chain of command, that his record supports his promotion, and the supporting statement he provided were carefully considered. However, while it is clear the applicant served with distinction, for which he deserves congratulations, there is insufficient evidence of record to corroborate his allegation of corruption on the part of members of his chain of command, as he and his daughter allege. Therefore, there is an insufficient evidentiary basis to support granting the requested relief. 2. By regulation, Soldiers must be selected for promotion to the pay grades E-7, E-8 and E-9 by a properly constituted promotion selection board and must be promoted by the proper promotion authority. The centralized promotion system was not in effect at the time of the applicant’s retirement; however, the policy at the time still required a recommendation for promotion by a properly constituted local promotion selection board, and authorization for promotion by the proper authority was still required. By law, Soldiers are retired in the rank and pay grade they hold on the date of their REFRAD. Retired Soldiers are entitled to be advanced on the Retired List to the highest grade in which they satisfactorily served while on active duty, as determined by the Secretary of the Army. However, in order to satisfy this requirement, a member must have been promoted to, held, and served in the higher pay grade while on active duty. 3. The evidence of record confirms the applicant was an SFC/E-6 on the date of his REFRAD for retirement. It also verifies this was the highest pay grade he attained while serving on active duty. It also shows he was never recommended for promotion to the pay grade E-7 by a properly constituted promotion selection board, and he was never promoted to, held, or served in a higher pay grade while he was 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 alleged error or injustice now under consideration on 30 June 1962. Therefore, the time for him to file a request for correction of any error or injustice expired on 29 June 1965. However, he failed to 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 ___MHM_ __ALR __ __LDS__ 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. ___Melvin H. Meyer______ CHAIRPERSON INDEX CASE ID AR20050001835 SUFFIX RECON DATE BOARDED 2005/10/27 TYPE OF DISCHARGE HD DATE OF DISCHARGE 1962/06/30 DISCHARGE AUTHORITY AR 635-200 DISCHARGE REASON Retirement BOARD DECISION DENY REVIEW AUTHORITY Mr. Chun ISSUES 1. 319 131.0900 2. 310 131.0000 3. 4. 5. 6.