APPLICANT REQUESTS: That his discharge from the USAR on 22 March 1979 be voided and that he receive promotion reconsideration to the rank of colonel by all boards that he would have been eligible for consideration had he not been discharged. He states, in effect, that he did not receive the proper counseling and therefore was not aware of his options at the time he elected to be discharged from the USAR. He goes on to state that had he been properly counseled, he would have elected to be transferred to the USAR Control Group (Inactive) until such time as he could practically participate actively in the USAR. Consequently, when he decided to return to the active Reserve, he would have been eligible for consideration for promotion to the rank of colonel. He further states that as a result of his being discharged, he had to apply for a new commission which resulted in the loss of additional pay and benefits that he otherwise would have retained had he been properly counseled. He continues by stating that he waives all rights to any back pay and entitlements that the correction would afford him. He also states that he was subsequently un-retired and is currently serving on extended active duty in the Air Force 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:
On 14 July 1977, the applicant, while serving as a medical corps officer in the rank of lieutenant colonel, was honorably released from active duty and transferred to a USAR unit in Miami, Florida.
On 19 March 1979 the Army Reserve Personnel Center (ARPERCEN) sent the applicant a letter of notification of nonparticipation in the USAR. The letter explained to the applicant his options at that time and informed the applicant that failure to select one of the listed options would result in automatic discharge. There is no indication in the available records to indicate that the applicant ever responded to the notification. Consequently, he was honorably discharged from the USAR on 22 March 1979.
On 12 March 1982 the applicant again accepted a commission as a USAR medical corps officer. He was commissioned at this time in the rank of major. He was subsequently promoted to the rank of lieutenant colonel on 22 April 1984.
He subsequently transferred from the USAR to the Texas Army National Guard and then to the New Mexico Army National Guard.
On 4 December 1990 the New Mexico Army National Guard notified the applicant (20-year letter) that he had completed the required years of service to be eligible for retired pay upon application at age 60 (28 June 2000).
On 31 May 1991 he was honorably released from the New Mexico Army National Guard in the rank of lieutenant colonel and transferred to the USAR Control Group (Retired Reserve).
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 22 March 1979, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 22 March 1982.
The application is dated 16 February 1994 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
ARMY | BCMR | CY2007 | 20070000644
The applicant provides a copy of his Enlistment Contract-Armed Forces of the United States (DD Form 4) dated 15 April 1975, and Orders 07-1132241, United States Army Reserve (USAR), dated 7 July 1976. The applicant is requesting correction of an alleged error or injustice which occurred on 6 February 1979, the date of his discharge from the USAR, Ready Reserve. He was subsequently reduced in rank and pay grade to specialist, pay grade E4 and then discharged from the United States Army...
ARMY | BCMR | CY2003 | 2003088498C070403
On 31 March 1978, he enlisted in the U.S. Army Reserve. Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers) states, in pertinent part, it requires 7 years time in grade (TIG) as a CPT to be considered for mandatory promotion to MAJ or a minimum of 4 years TIG to be eligible for consideration for a unit vacancy promotion. The Board determined that the evidence presented and the merits of this case...
ARMY | BCMR | CY2013 | 20130005895
The applicant requests, in effect, correction of records to show he was placed on the Retired List in the rank of colonel (COL)/pay grade O-6. ARPERCEN Orders P-06-303425, dated 24 June 1997, placed the applicant on the Retired List in the retired grade of LTC effective 12 March 1997. Orders filed in his records show his last promotion was to the rank/pay grade of LTC/O-5.
ARMY | BCMR | CY2012 | 20120020640
Adjustment of his date of rank (DOR) to major (O-4) to 17 July 2003. c. ARNG promotion to lieutenant colonel (O-5), year group 2009. d. Waivers of military education requirements for O-5 promotion. On 21 February 2007, the applicant was notified he had been selected for promotion to major by an SSB with a promotion eligibility date of 17 July 2003. Revoking his discharge from the ARNG and as a Reserve of the Army, dated 1 February 2004. b.
ARMY | BCMR | CY2005 | 20050015987C070206
The applicant provides a copy of a letter from a retired customs criminal investigator, dated 21 October 2005, who served with him at the Customs Attaché Office from 1995 to 1999. The applicant completed 20 years and 3 days of qualifying service for retired pay. The evidence shows that the applicant completed the minimum years of qualifying service, but lacked the additional qualifying service as a Reserve Soldier, to satisfy the requirement of the last 6 years of qualifying service in a RC.
AF | BCMR | CY2003 | BC-2002-00089
This section states, “…a reserve officer’s years of service include all service, other than constructive service, of the officer as a commissioned officer of any uniformed service (other than service as a warrant officer).” The applicant believes that use of the time as a warrant officer should not count when computing time for establishing MSD. Applicant’s complete response to the additional Air Force evaluation is at Exhibit...
ARMY | BCMR | CY2013 | 20130002607
The applicant states she was not counseled or afforded the opportunity to transfer into the Retired Reserve in accordance with Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) and Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prior to being discharged from the USAR on 30 September 1999. Army Regulation 135-155, paragraph 4-4, states that USAR...
ARMY | BCMR | CY2012 | 20120023025
She was not married to the FSM at the time when the DD Form 1883 was to be submitted; therefore, she had no control over the paperwork. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary...
ARMY | BCMR | CY2008 | 20080019714
The applicant provides a self-authored letter, dated 2 December 2008; State of New Mexico, Department of Military Affairs, Military Division, Santa Fe, New Mexico (NM), Orders 124-004, dated 3 May 2000; nine DFAS Forms 702 (Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statements (LES)) for the months of March, April, May, June, and July 2001 and January, February, March, and May 2002; DA Form 2166-8 (NCO Evaluation Report) for the period August 2001 through March...
ARMY | BCMR | CY2009 | 20090017734
There is no record that the Board received this application. Based on his continued duty performance, completion of required officer professional development training, and his demonstrated potential for positions of increasing responsibility, the applicant was promoted to lieutenant colonel in the Military Intelligence Branch of the Army Reserve on 13 March 2006. The statute, which is applicable to all commissioned officers of the Armed Forces, states officers in the rank of lieutenant...