RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 January 2005
      DOCKET NUMBER:  AR2004107017


      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. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 reconsidered for
promotion to lieutenant colonel (LTC) by a special selection board (SSB).

2.  The applicant states that his amended records, after unjust and
prejudiced officer efficiency reports (OERs) were removed, were not
referred to an SSB.  He has no doubt that, based on his positions and
performance as a major (MAJ), had an SSB considered his amended records he
would have been promoted.

3.  The applicant provides the 15 documents ("Enclosed Documents" and
"Additional Documents") listed on the enclosure to his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 August 1970 (the date of the Office of The Adjutant General
letter informing him his records would be referred for promotion
consideration).  The original application submitted in this case was dated
19 August 2001.

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 service, the applicant entered active duty as a
commissioned officer on 16 August 1950.  He was promoted to MAJ on 2 June
1966.

4.  Ratings under the OER, version DA Form 67-5, consisted of rater and
indorser ratings of the officer's personal qualities (a maximum of 10
points each); rater and indorser ratings of the officer's overall
demonstrated performance (a maximum of 100 points each); and rater and
indorser ratings of the officer's estimated potential (a maximum of 10
points each, for a maximum of 240 points. The applicant's MAJ OER history,
with total point score, is as follows:

     OER ending 23 June 1966 – 229.8 points
     OER ending 15 January 1967 – 231.5 points
     OER ending 30 July 1967 – 231.6 points
     OER ending 12 November 1967 – 192.9 points
5.  On 7 March 1969, the applicant appealed two OERs, those for the periods
   13 November 1967 through 21 April 1968 and 22 April 1968 through 26
August 1968.  He stated he was not working for the Army officer and
civilian who prepared those OERs.  He was under Navy control at the time.

6.  In April 1969, the applicant was considered for promotion to LTC.  He
was not recommended for promotion but he was retained in the grade of MAJ.

7.  On 20 April 1970, the applicant requested retirement.

8.  On 30 June 1970, the applicant was released from active duty and placed
on the retired list effective 1 July 1970.

9.  By letter dated 12 August 1970, the Office of The Adjutant General
informed the applicant that his claim that he was rated by the incorrect
rating officials on two OERs was substantiated.  Those OERs were voided and
removed from his records.  His career branch was notified and action was
taken to refer his record for whatever promotion consideration was
appropriate.

10.  By letter dated 10 March 2003, the U. S. Total Army Personnel Command
(PERSCOM) informed the applicant that the only information they had was
that he had been considered and not selected for promotion but retained in
grade by the board that met in April 1969.  No LTC promotion board was held
in 1970.

11.  By letter dated 18 March 2004, the U. S. Army Human Resources Command
(formerly PERSCOM) informed the applicant that they reviewed their files
from the years of 1969 through 1972 and found nothing to show he had been
considered by an SSB for promotion to LTC as an omission or reconsideration
based on a material error.

12.  In the processing of this case, an advisory opinion was obtained from
the Promotions Branch, U. S Army Human Resources Command.  That office
noted that their records showed the applicant was never considered by a SSB
for promotion to LTC.  There was no LTC board in 1970.  The 1971 board
adjourned on 11 June 1971.  He was not eligible for the 1971 board as he
had retired on   30 June 1970.  He could have been reconsidered for
promotion by the 1971 board; however, as he was off active duty he would
have had to request such reconsideration through the ABCMR.  That office
noted that they could accomplish an SSB if directed.

13.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He noted that he had appealed an OER in March 1969,
at the same time his promotion board was being held.  In April 1970, he
requested retirement to be effective 1 July 1970.  In late August 1970, he
received a letter informing him that this records had been amended to
reflect the change and his career branch was notified "AND THAT ACTION HAD
ALSO BEEN TAKEN TO REFER YOUR RECORDS FOR WHATEVER PROMOTION CONSIDERATION
WAS APPROPRIATE" (emphasis in his original).

14.  The applicant stated that he was confident that the actions mentioned
in the August 1970 letter were taken.  He always had and still has great
confidence and trust in the Army agencies and its personnel.

15.  Army Regulation 600-8-29 is the current regulation that prescribes the
policies and procedures for promotion of officers on active duty.  This
regulation specifies that promotion reconsideration by a special selection
board may only be based on erroneous nonconsideration due to administrative
error, the fact that action by a previous board was contrary to law, or
because material error existed in the record at the time of consideration.


16.  Army Regulation 635-100, chapter 4 was the regulation in effect at the
time that established procedures for the implementation of laws and
policies governing the retirement of officers except for physical
disability retirement and retired pay for non-Regular officers.  In
pertinent part, it stated that an individual who accepted an Army of the
United States or Regular Army promotion to pay grade O-5 which changed his
active duty pay grade must serve a minimum of      2 years in the new
grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records should have been reconsidered for promotion to
LTC after his appealed OERs had been removed from his records.  It appears
his records were not automatically referred to an SSB because the appeal
was approved and his records were amended after he had already left active
duty.  However, the U. S. Army Human Resources Command indicated in their
advisory opinion that they could accomplish an SSB.

2.  It would be equitable, even at this late date, to have the applicant's
records reconsidered for promotion to LTC under the criteria of the 1969
board.

BOARD VOTE:

__lds____  __jtm___  __cak___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief and to excuse failure to timely file.
As a result, the Board recommends that all Department of the Army records
of the individual concerned be corrected by submitting his records to a
duly constituted Special Selection Board for reconsideration for promotion
to lieutenant colonel under the 1969 criteria.

2.  That if he is selected for promotion his records be further corrected
by:

     a.  promoting him to lieutenant colonel and assigning the appropriate
date of rank and paying him any due back pay and allowances;

     b.  voiding his retirement of 1 July 1970;

     c.  showing he was retired in the rank and grade of lieutenant
colonel, O-5 after completing 2 years time in grade; and

     d.  paying to him all due back active duty pay and allowances as a
result of the above correction with appropriate offsets for any civilian
pay and/or military retired pay he may have received.

3.  That if he is not selected for promotion, he be notified accordingly.




            __Linda D.Simmosn_
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004107017                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050111                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.11                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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