RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           25 August 2005
      DOCKET NUMBER:  AR20040010594


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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 selected for conditional voluntary indefinite (CVI) status.

2.  The applicant states he requested a limited recall to active duty while
serving in Bosnia and was informed in August 2000 that due to a
Headquarters, Department of the Army (HQDA) board action he was not
eligible for recall.  He was informed by one of the ladies at Accessions
branch he was nonselected for "promotion to Captain for indefinite status
on active duty."  He informed that lady he had been selected for captain
while on active duty by the 1984 promotion board.  He was informed that did
not matter.

3.  The applicant states he believes he was denied CVI status because the
board and a reconsideration board were not in possession of all the facts
through no fault of his own; that is, his CVI packet had no indication he
had already been selected for promotion to captain.  He states he has
requested the rules that the December 1985 CVI/Promotion Board operated
under.  He was told they started using selection to captain for CVI
selection in December 1985.  A colonel informed him in 2003 the December
1985 board had used selection to captain as the deciding factor for CVI.

4.  The applicant provides his promotion orders; a 22 August 2000 letter
from the U. S. Total Army Personnel Command; a 17 October 2000 memorandum
rebutting his nonselection for recall to active duty; a 30 October 2001
memorandum rebutting his nonselection for [recall to] active duty; and four
letters (dated 4 April 2002, 24 April and 1 May 2003, and 3 March 2004)
from the Chief, Officer Division, Office of the Deputy Chief of Staff, G-1.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 12 March 1987.  The application submitted in this case is
dated       9 September 2004 and was received in this office on 2 December
2004.

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.  After having had prior enlisted service, the applicant was commissioned
a second lieutenant in the U. S. Army Reserve in December 1980.  He entered
active duty on 16 September 1983 as an obligated volunteer officer for 3
years.  His second lieutenant and first lieutenant Officer Evaluation
Report (OER) history follows (* indicates applicant’s senior rater (SR)
potential block rating):

           OER Period Ending            SR Block Rating

           14 November 1981       0/1/5/*12/2/0/0/0/0

      Part IVa (Performance Evaluation – Professionalism) lists 14
categories of Professional Competence which are rated from a high of "1" to
a low of "5".  The applicant received all "1s" in Part IVa.

      The officer's performance was rated in Part Vb with ratings ranging
from "Always Exceeded Requirements" to "Usually Exceeded Requirements,"
"Met Requirements," "Often Failed Requirements," and "Usually Failed
Requirements."  The applicant's performance was rated as "Usually Exceeded
Requirements."

      The officer's promotion potential was rated in Part Vd with ratings
ranging from "Promote Ahead of Contemporaries" to "Promote with
Contemporaries," "Do Not Promote," and "Other."  The applicant's promotion
potential was rated as "Promote with Contemporaries."

           14 November 1982       0/0/0/0/*1/0/0/0/0

      In Part IVa, the applicant received a "2" in the category
"demonstrates appropriate knowledge and expertise in assigned tasks."  His
performance was rated as "Usually Exceeded Requirements."  His performance
was rated as "Promote with Contemporaries."

            15 August 1983        0/0/5/11/*4/0/0/0/0

      In Part IVa, the applicant received "2s" in the categories
"demonstrates appropriate knowledge and expertise in assigned tasks,"
performs under physical and mental stress," "clear and concise in written
communication," "displays sound judgment," and "sets and enforces high
standards."  His performance was rated as "Usually Exceeded Requirements."
His performance was rated as "Promote with Contemporaries."

      This OER also indicated he failed the Army Physical Fitness Test in
August 1983.
(The applicant was promoted to first lieutenant on 17 December 1983.)

            4 February 1985       1/9/11/5/*2/0/0/0/0

      In Part IVa, the applicant received "2s" in the categories "motivates,
challenges and develops subordinates" and "sets and enforces high
standards."  His performance was rated as "Always Exceeded Requirements."
His performance was rated as "Promote with Contemporaries."

            4 September 1985      5/12/10/*8/2/0/0/0/1

      In Part IVa, the applicant received "1s" in all 14 categories.  His
performance was rated as "Always Exceeded Requirements."  His performance
was rated as "Promote with Contemporaries."

4.  On orders dated 27 January 1986, the applicant was promoted to captain
with an effective date of 1 March 1986.

5.  By letter dated 8 April 1986, the applicant was notified (the letter
was addressed to First Lieutenant F___) his request for retention on active
duty under the provisions of Army Regulation 135-215 had been evaluated by
a board of officers convened at the U. S. Army Military Personnel Center.
After careful consideration, the board concluded he could not be further
retained on active duty.  Army strength management considerations made it
impossible for every officer applying for retention to receive approval.
He was informed he would be released from active duty no later than the
expiration date of his current period of obligated service, which was 12
March 1987.

6.  On 25 November 1986, the applicant requested reconsideration of his CVI
request.  The action on his request is not available.  However, on 12 March
1987 he was released from active duty upon the expiration of his term of
service and transferred to the U. S. Army Reserve.

7.  On 22 August 2000, the U. S. Total Army Personnel Command informed the
applicant he was ineligible for selection to fill an active duty position
under the limited Call to Active Duty Program.  He was informed
commissioned officers who were not selected for CVI status or for temporary
or permanent promotion were ineligible to apply.

8.  Army Regulation 135-215 (Officer Periods of Service on Active Duty),
version dated 19 August 1985, set policy for officers of the Reserve
components to serve on extended active duty with their consent.

9.  Army Regulation 135-215, paragraph 7 stated no officer had the inherent
right to continued service as an officer.  The privilege of service was
retained only as long as the officer's performance met expected standards,
Army authorizations existed, and continued service was in the best interest
of the Army.  The responsibility for leadership and example required that
officers accomplish their duty effectively and conduct themselves in an
exemplary manner at all times.  Only those officers whose demonstrated
performance merited retention and who possessed acceptable moral and
professional traits would be eligible for career status.

10.  Army Regulation 135-215, paragraph 9b stated CVI requests would
normally be approved unless one or more of the following conditions
existed:  (1)  the officer did not meet weight standards; (2) the officer's
retention on active duty was not desirable due to misconduct, moral or
professional dereliction, or poor potential for future schooling, increased
responsibility, or promotion; (3) the officer was not medically fit to
perform satisfactorily in a world-wide field environment; and (4) the needs
of the Army or competitive category concerned would best be served by
disapproving the request for CVI status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no evidence at this time to show he was
nonselected for CVI solely because he had not been selected for promotion
to captain.  Had that been the sole reason he was nonselected for CVI, it
appears that would have been an erroneous nonselection as he had been
selected for promotion to captain.

2.  The regulation in effect at the time listed several reasons why an
officer would not be selected for CVI, including his or her retention on
active duty not being desirable due poor potential for future schooling,
increased responsibility, or promotion and the needs of the Army or
competitive category concerned would best be served by disapproving the
request for CVI status.

3.  Admittedly that last reason for nonselection is all-encompassing.
However, given the applicant's second lieutenant and first lieutenant OER
history it appears a CVI board made a reasonable determination he had poor
potential for extended active duty.  His selection for promotion to captain
in the Infantry Branch by a promotion board would not necessarily have
negated the CVI board's determination he had no potential for extended
service.  A CVI board would have looked at the applicant's potential for
extended, long-range service in the Army rather than the more limited,
short-term potential service he could have provided as a captain.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 March 1987; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         11 March 1990.  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

__mkp___  __reb___  __lmb___  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.




            __Margaret K. Patterson
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010594                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |102.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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