RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 November 2005
      DOCKET NUMBER:  AR20050004962


      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. John N. Slone                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. Larry J. Olson                |     |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 that his retired grade be changed from
lieutenant colonel (LTC), O-5 to colonel (COL), O-6.  He requests, in
effect, that his records be corrected to show he was promoted to COL.

2.  The applicant states his officer evaluation reports (OERs) for the
periods ending 30 September 1990 and 31 May 1991 were key contributing
factors in his not being recommended for promotion to COL.  Those were the
only OERs where he was rated less than "Always Exceeded Requirements."
There was a personality conflict between his rater, Brigadier General S___,
and himself and his rater expressed his feelings in those two OERs.  Those
two OERs, covering a period of 1 year and 8 months, should not overshadow
the objective evidence described in previous and subsequent OERs.  In
addition, he was recommended for a Meritorious Service Medal (MSM) for the
same period of time covered by the two OERs.  The citation for the MSM does
not "read" like someone who only "Usually Exceeded Requirements" or "Met
Requirements."

3.  The applicant states he just became aware of "this process" (i.e., the
Army Board for Correction of Military Records (ABCMR)).

4.  The applicant provides OERs for the periods ending 31 August 1987,
     31 August 1988, 13 February 1989, 30 September 1989, 30 September
1990,   31 May 1991, 9 February 1992, and 9 December 1992; an approved
recommendation for award of the MSM for the period 1 May 1989 to 1 April
1991; and an approved recommendation for award of the MSM for the period
"0963 to 1293."

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred at the latest on 26 January 1993 (the date of the orders
transferring him to the Retired Reserve).  The application submitted in
this case is dated 29 March 2005.

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 prior service, the applicant accepted appointment in the
U. S. Army Reserve around 1979.  He was promoted to LTC on 28 April 1986.

4.  The record copies of the applicant's OERs (i.e., copies with the senior
rater's (SR's) profile) are not available.  His OER history, as evidenced
by the OERs provided by the applicant, is as follows:

Period ending    Rater's Performance    Rater's Potential     SR's Rating

31 August 1987   Always Exceeded        Promote with          2-block
                   Requirements           Contemporaries

31 August 1988   Always Exceeded        Promote Ahead    2-block
                   Requirements           of Contemporaries

13 February 1989 Always Exceeded        Promote with          3-block
                   Requirements           Contemporaries

30 September 1989      Always Exceeded       Promote Ahead    2-block
                   Requirements           of Contemporaries

30 September 1990      Usually Exceeded      Promote with           3-block
                   Requirements           Contemporaries

31 May 1991      Met Requirements       Promote with          3-block
                                          Contemporaries

9 February 1992  Always Exceeded        Promote with          3-block
                   Requirements           Contemporaries

9 December 1992  Always Exceeded        Promote Ahead    3-block
                   Requirements           of Contemporaries

5.  By letter dated 2 October 1992, the applicant was notified he had been
considered but not recommended for promotion to COL.

6.  On orders dated 26 January 1993, the applicant was transferred to the
Retired Reserve, effective 9 November 1992, by reason of maximum length of
service.

7.  On 21 November 2005, the U. S. Army Human Resources Command – St. Louis
informed the Board analyst they had no record of the applicant appealing
the contested OERs.
8.  Army Regulation 623-105 establishes the policies and procedures for
preparing, processing and using the OER.  The regulation also provides that
an OER accepted for inclusion in the official record of an officer is
presumed to be administratively correct, to have been prepared by the
proper rating officials and to represent the considered opinion and
objective judgment of the rating officials at the time of preparation.  The
burden of proof in appealing an OER rests with the applicant.  Accordingly,
to justify deletion or amendment of a report, the applicant must produce
evidence that clearly and convincingly nullifies the presumption of
regularity.  Clear and convincing evidence must be of a strong and
compelling nature, not merely proof of the possibility of administrative
error or factual inaccuracy.

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant
Officers other than General Officers), in effect at the time, provided for
a standby advisory board to convene to prevent any injustice to an officer
or former officers who were eligible for promotion but whose records
contained a material error when reviewed by the selection board.  A
material error is defined as one or more errors of such a nature that, in
the judgment of the reviewing official (or body), it caused an individual's
nonselection by a promotion board.  Had such an error(s) been corrected at
the time the individual was considered, it would have resulted in a
reasonable chance that the individual would have been selected for
promotion.

10.  Title 10, U. S. Code, section 12771 states that, unless entitled to a
higher grade under another provision of law, a reserve commissioned officer
who is transferred to the Retired Reserve is entitle to be placed on the
retired list in the highest grade in which he served satisfactorily.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence of record shows the highest grade in which the
applicant satisfactorily served was LTC; therefore, there is insufficient
evidence on which to base a correction of his records to show his retired
grade as COL.

2.  The applicant contended his OERs for the periods ending 30 September
1990 and 31 May 1991 were key contributing factors in not being recommended
for promotion to COL.  He also contended he just became aware of the ABCMR.
 However, he should have been aware of the OER appeal process at the time
he received the two contested OERs and there is no evidence to show he
appealed those OERs.

3.  Record copies of the applicant's OERs are not available; therefore, it
cannot be determined how he stood in relation to his peers in regard to the
SR's block evaluations.  Out of the eight OERs the applicant provided it
was only Brigadier General S___ who rated his performance as less than
Always Exceeded Requirements; however, his promotion potential was rated as
Promote Ahead of Contemporaries in only three of those OERs, with Promote
with Contemporaries ratings in the other five.

4.  Promotion to COL during the drawdown period was keenly competitive.  It
appears the promotion board made the decision that the applicant's records
were not sufficiently competitive to warrant promotion to COL.  Regardless
of the applicant's later awards of the MSM, based on a review of the
applicant's OERs there is no compelling evidence that shows it was only the
two contested OERs that prevented his selection for promotion to COL.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 January 1993; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         25 January 1996.  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

__jns___  __phm___  __ljo___  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.




                                  __John N. Slone_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050004962                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051123                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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