RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 December 2004
      DOCKET NUMBER:  AR2004106111


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 record be corrected to show
that he was promoted to colonel in the Army Reserve (USAR).

2.  The applicant states that he served in the grade of lieutenant colonel
for five years, had met all of the requirements for promotion and had
completed the Judge Advocate General's Corps (JAGC) Career Extension Course
on
1 September 1961.  He concludes that, "The actions of the Board were ex
post facto."

3.  The applicant provides an original letter requesting help with this
application from a United States Senator with a summation of his argument
for promotion that concludes he was non selected for promotion because of
"Ex Post Facto decision to require six months at Fort Leavenworth, Kansas."
 He also provides a copy of his 1961 course completion certificate for the
Judge Advocate Officer Career Extension Course, a 1965 security clearance
certificate, a chronological record of his service and retirement points
(AGUZ Form 249) and a letter from the Senator.

4.  He believes that the Board should find it in the interest of justice to
consider the case because, "Justice must be met and corrected regardless of
time."

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 September 1970.  The application submitted in this case is
dated 2 March 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 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.  The applicant's military records show that he was a career JAGC officer
in the Michigan Army National Guard and USAR.

4.  He completed the Judge Advocate Officer Career Extension Course as a
captain in September 1961.

5.  The applicant was promoted to major in the Army National Guard and
extended Federal Recognition in August 1959 and promoted to lieutenant
colonel in the USAR in 1968.

6.  The only evidence of his performance as a lieutenant colonel is an
officer efficiency report for the period from 25 September 1968 to 30 April
1969.  There is no other information in the available records about the
applicant's duty performance, professional education or promotion
consideration as a lieutenant colonel.

7.  He was issued a Notification of Eligibility for Retired Pay at Age 60
[a 20-year letter] on 2 June 1970 and informed his unit commander, in a 5
August 1970 letter, that he intended to retire as soon as possible.  He was
transferred to the USAR Control Group (Retired) on 14 September 1970.  He
had 22 years of qualifying service for pay at age 60 and 34 years and 19
days to years of longevity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's allusion to an ex post facto decision that required six
months at Fort Leavenworth, Kansas is unclear; however, it may refer to the
military education requirement that promotion to colonel requires
completion of the Command and General Staff Course or an authorized
equivalent.

2.  In the absence of evidence to the contrary, it is presumed that the
applicant's promotion consideration and retired grade determination were
conducted in accordance with law and regulations applicable at the time.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 September 1970, the time for the
applicant to file a request for correction of any error or injustice
expired on
13 September 1973.  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

__MM___  ___LDS _  __MJF___  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                 |AR2004106111                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041209                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     | . . .                                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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