APPLICANT REQUESTS:  That his nonselection for promotion to lieutenant colonel (LTC), USAR, be reconsidered.  He states that he completed the Air Defense Officer Career Course on 30 June 1963 and the completion certificate was not in his record when it was reviewed by the 1963 USAR LTC selection board.  He contends that had this evidence been in his record the board would have considered him educationally qualified and selected him for promotion.  Instead, this was his second (sic) nonselection for promotion to LTC and resulted in his having to transfer to the retired reserve.

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:

He served in World War II from 16 September 1943 to 5 May 1946 as a first lieutenant and in the Korean war from 15 May 1951 to 28 January 1953 as a captain.  Between these periods of active duty and upon his release therefrom, he served in the reserve components.

On 26 March 1956 he was promoted to major and on 13 February 1963 he was advised of his first nonselection for promotion to LTC.  The specific reasons for his nonselection are not known.

Consistent with regulatory guidance concerning USAR promotion boards, he was advised that since he had failed to be selected for promotion, he would again be considered by the next regularly scheduled selection board.

On 20 November 1964 he was advised that he had been nonselected for promotion for the second time, and in accordance with pertinent regulations, was required to be removed from an active USAR status.  He opted to transfer to the retired reserve.

The reasons for his nonselection by the second promotion board, are like all promotion boards results, not divulged. 

The evidence of record shows that the applicant completed the Air Defense Officer Career Course on 30 June 1963.  The second promotion board convened on 24 September 1963 and adjourned on 5 December 1963 and apparently was unaware of his having completed his military education requirement.  It cannot be determined, however, whether he would have been promoted to LTC had this evidence been known by the promotion board, since specific reasons for nonselection may not be revealed.

On 13 July 1965, in response to his inquiry, the Office of Personnel Operations, Fort Benjamin Harrison, Indiana advised him that no specific reason for his nonselection could be provided because of the confidentiality requirements of promotion boards.  He was further advised that his only recourse for reconsideration was to apply to this Board.

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.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the US Total Army Personnel Command.  It contains no information, advice or recommendation which would constitute a basis for granting the relief requested or for excusing the applicant's failure to timely file.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 13 July 1965, the date he was advised by the Office of Personnel Operations to file an application to this Board.  The time for the applicant to file a request for correction of any error or injustice expired on 13 July 1968.

The application is dated 7 September 1995 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

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director