RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 February 2005
      DOCKET NUMBER:  AR20040006537


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. William D. Powers             |     |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 his records be corrected to
show he was promoted to lieutenant colonel and that he be paid non-Regular
retired pay.

2.  The applicant states that he enlisted (he was not drafted) in the Army
about two weeks after Pearl Harbor.  He was soon commissioned a second
lieutenant.  He was promoted to captain before he was released from active
duty, whereupon he immediately joined the Army Ready Reserve in Kansas
City, MO.  He actively participated in the Reserve and was promoted to
major.  After a number of years, a Space Program contractor was in town
recruiting personnel for the Apollo Program.  The recruiter offered him a
position in California, which he accepted.  He performed good work for
them.  He completed his Bachelor of Arts degree there in 1972 and a Master
of Business Administration in 1976.

3.  The applicant states that he was placed in an impossible situation.  He
could complete his higher education, but the list of possible military
training units in California conflicted with his education requirements.
Further, most of the listed training units were very far from his home, and
some of the near ones would not accept field grade officers.  If he had
stayed in Kansas City, he would have most certainly have earned the rank of
lieutenant colonel.  Further, if the Army Reserve had provided adequate
training solutions for him in California, he would have undoubtedly
accepted them.

4.  The applicant states that his subsequent activities for many years have
been related to military affairs.  He has received no money from the Army
Reserve since he left Kansas City many years ago.  A letter he received in
April 1963 informed him he was credited with 10 years, 5 months, and 26
days of "FEDERAL SERVICE FOR RETIREMENT PAY PURPOSES."  He has NEVER
received a cent of retirement pay for federal service.  He would like the
retirement pay due him which he has never received and, as he is now 84
years of age, he would like to have "Lieutenant Colonel" inscribed on his
tombstone.

5.  The applicant provides a letter dated 16 April 1963; two letters dated
18 June 2004; a letter dated 20 August 2004; and a Butler Society News
Bulletin, issue April 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 May 1964, the date orders were issued transferring him to
the Retired Reserve.  The application originally submitted in this case was
dated 24 July 2003.
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 limitation 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.  After having had prior enlisted service, the applicant entered active
duty as a commissioned officer on 16 October 1942.  He was released from
active duty on 14 May 1946.  He accepted appointment in the Officer Reserve
Corps on 15 May 1946.  He was promoted to major in the U. S. Army Reserve
(formerly the Officer Reserve Corps) on 29 October 1954.

4.  By letter dated 13 July 1962, the applicant was informed that he was
considered for promotion but not selected.  That constituted his first
nonselection for the next higher Reserve grade.

5.  In an undated letter, the applicant requested a Reserve assignment in
California.  In that letter, he also stated that he had never checked to
see how many "good" (quotes in the original) years he had.  He knew he had
some    years that did not qualify.  In response, he was sent a Statement
of Service (Retirement) and a letter dated 16 April 1963.  The letter
informed him that the statement of service showed he was credited with 10
years, 5 months, and       26 days of satisfactory Federal service for
retirement pay purposes.  He was also informed that if he should not be
selected for promotion by a second board his removal from an active status
would be mandatory and that a second nonselection precluded any opportunity
for application for reappointment in the Army Reserve.

6.  By letter dated 22 July 1963, the applicant wrote to the next promotion
board. He stated that business prevented him from completing the second
year in the advanced Quartermaster course he was attending in Kansas City.
He completed the third year, but was unable to attend the following year
due to the fact the course started over again with the first year.  He
stated there were no unit assignments he could secure for the year he could
not attend the school.  He stated that when he arrived in California, he
wrote asking for information regarding assignments but was not able to get
an assignment or a mobilization designation.

7.  By letter dated 27 March 1964, the applicant was informed that he had
been nonselected for promotion a second time.  His discharge was mandatory
in accordance with the regulation governing the promotion of Reserve
officers not on active duty unless he was eligible for and requested
transfer to the Retired Reserve.  He was informed that he was eligible for
transfer to the Retired Reserve.  Paragraph 4 of the letter informed him
that transfer to the Retired Reserve did not automatically entitle him to
pay, allowances, or other benefits unless otherwise entitled to by law.
The fact he may have completed a total of 20 years' service did not qualify
him for retirement benefits unless such service was qualifying service.  He
checked that he requested transfer to the Retired Reserve and signed the
letter.  Orders dated 27 May 1964 transferred him to the U. S Army Reserve
Control Group (Retired) effective 15 April 1964.

8.  Army Regulation 135-180 implements statutory authorities governing the
granting of “retired pay” to soldiers and former Reserve component
Soldiers.

9.  Sections 23731 through 12740 of Title 10, U.S. Code, authorize retired
pay for Reserve component military service.  Under this law, a Reserve
Soldier must complete a minimum of 20 qualifying years of service to be
eligible for retired pay at age 60.  The term “good years” is an unofficial
term used to mean years in which 50 or more retirement points are earned
during each year and which count as qualifying years of service for
retirement benefits at age 60.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers, other
than General Officers), in effect at the time, provided that an officer
twice failing of selection for promotion to lieutenant colonel would be
transferred to the Retired Reserve, if eligible, or discharged.

11.  Army Regulation 140-160 (Army Reserves Transfers and Details), in
effect at the time, provided for the transfer to the Retired Reserve of
several categories of individuals.  Categories included those who had
completed a total of 20 years' service, active or inactive, in any
component of the Armed Forces, and those who had attained the age of 37
years and had completed a minimum of 8 years of satisfactory Federal
service.  It also provided that, unless otherwise entitled under some
provision of law, members of the Army Reserve were not entitled to retired
pay or other retirement emoluments or benefits solely by reason of transfer
to or placement in the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's military service, both enlisted and officer, both
active and Reserve component, was very commendable and very much
appreciated by his country.

2.  The Board understands that his civilian employment prevented him from
attending some military courses and may have interfered with actively
pursuing his Reserve career as he would have liked.  The Board understands
that he attempted to obtain a unit assignment after he moved to California
but was unable to do so.  The Board also appreciates that he worked for the
Space Program and other, military-related, projects as a civilian.

3.  Nevertheless, the applicant was considered for promotion to lieutenant
colonel twice and was found not to be competitive with his peers.  In
accordance with the regulations in effect at the time, he was required to
be either discharged or, if he requested, he could be transferred to the
Retired Reserve.  The evidence of record shows he requested transfer to the
Retired Reserve.

4.  The applicant is not entitled to retired pay.  It appears he understood
that he did not qualify for retired pay as, around 1963, he checked to see
how many "good" years he had.  He was informed in April 1963 that he was
credited with   10 years, 5 months, and 26 days of satisfactory Federal
service for retirement pay purposes.  In March 1964, his notification of
his second nonselection for promotion informed him that even if he
completed a total of 20 years' service he did not qualify for retirement
benefits unless such service was qualifying service.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 May 1964, the date of the orders
transferring him to the Retired Reserve; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 26 May 1967.  However, 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

__wtm___  __jtm___  __wdp___  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.




            __Walter T. Morrison__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040006537                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050201                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.00                                  |
|2.                      |136.04                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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