RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 6 December 2005
DOCKET NUMBER: AR20050005378
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. Bernard P. Ingold | |Chairperson |
| |Mr. Donald W. Steenfott | |Member |
| |Mr. Edward E. Montgomery | |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 he be advanced to Lieutenant Colonel, O-5
on the retired list.
2. The applicant makes no additional statement.
3. The applicant provides no additional evidence.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice
which occurred around November 1976 (when his active service plus his
service on the retired list totaled 30 years). The application submitted
in this case is dated 30 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 had prior enlisted service, the applicant was commissioned
and entered active duty on 4 January 1952. He was promoted to Major, O-4
on 31 August 1964. He was released from active duty on 30 June 1970
after completing 23 years, 7 months, and 23 days of creditable active
service and placed on the retired list on 1 July 1970 in the rank of Major.
4. Title 10, U. S. Code, chapter 369 governs retired grades. Section 3961
of that title states the retired grade of a regular commissioned officer
who retires other than for physical disability and the retired grade of a
reserve commissioned officer of the Army who retires other than for
physical disability or for nonregular service under chapter 1223 of this
title is determined under section 1370 of this title. Section 1370
provides that, in order to be eligible for voluntary retirement under any
provision of this title in a grade above major, a commissioned officer of
the Army must have served on active duty in that grade for not less than
three years.
5. Title 10, U. S. Code, section 3964 provides that warrant officers and
enlisted members may, when their active service plus their service on the
retired list totals 30 years, be advanced on the retired list to the
highest grade in which they served on active duty satisfactorily. There is
no provision for advancing a commissioned officer who retired for other
than physical disability on the retired list after the completion of a
specific period of service.
DISCUSSION AND CONCLUSIONS:
1. There is no provision in the law for advancing a commissioned officer
who retired for other than physical disability on the retired list after
the completion of a specific period of service. The applicant provides
insufficient evidence which would warrant granting the relief requested.
2. Records show the applicant should have discovered the alleged error or
injustice now under consideration around November 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired around November 1979. 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
__bpi___ __dws___ __eem___ 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.
__Bernard P. Ingold___
CHAIRPERSON
INDEX
|CASE ID |AR20050005378 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20051206 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY |Mr. Chun |
|ISSUES 1. |129.04 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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