RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 January 2006
      DOCKET NUMBER:  AR20050008449


      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. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 reconsideration of his request for promotion to
lieutenant colonel (LTC) on the retired list with entitlement to LTC pay
from the date of retirement.

2.  In the earlier case, applicant's counsel requested the applicant be
granted de facto status as an LTC because it took the Army two years to
advise the applicant his promotion to LTC was improper.

3.  The applicant states he found the memorandum dated 8 October 1990 that
promoted him to LTC and indicated "Senate confirmation be upheld."  He
provides evidence to show the signature on his declination of promotion was
a forgery.

4.  The applicant provides a promotion memorandum dated 8 October 1990; his
Judge Advocate General Corps Advanced Course diploma; a forensic report
dated 16 May 2005; a corrected official photograph; and a Federal Bureau of
Investigation (FBI) appointment letter dated 5 June 1969.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003083371 on 24 February 2004.

2.  The Judge Advocate General Corps Advanced Course diploma, the
"corrected" photograph, the FBI appointment letter, and the forensic report
dated 16 May 2005 are new evidence which will be considered by the ABCMR.

3.  The applicant was appointed in the U. S. Army Reserve (USAR) as a
second lieutenant effective 8 June 1960.  He was promoted to first
lieutenant effective    8 June 1963 and to captain effective 6 June 1967.
He was discharged from the USAR effective 3 February 1969.

4.  On 13 December 1977, the applicant executed an Oath of Office with the
Connecticut Army National Guard (CTARNG) as a captain.

5.  On 13 June 1983, the Reserve Components Personnel and Administration
Center (RCPAC) notified the National Guard Bureau (NGB) the applicant had
been selected for promotion to major with a promotion eligibility date
(PED) of   13 April 1983.  On 26 July 1983, the RCPAC memorandum was
endorsed to The Adjutant General of Connecticut.  The endorsement requested
notification on whether the applicant would accept the promotion with
continued assignment to the ARNG, decline the promotion with continued
assignment to the ARNG in his current grade, or accept the promotion with
concurrent assignment to the USAR.

6.  On 7 September 1983, the request for information was forwarded to the
applicant's battalion commander as a second endorsement.  The applicant's
name and signature appears at the bottom of this second endorsement with
the statement, "The undersigned declines promotion with continued
assignment to the ARNGUS in present grade."

7.  On 5 October 1983, the battalion commander forwarded the applicant's
signed statement to The Adjutant General of Connecticut stating the
applicant declined promotion with continued assignment to the Army National
Guard of the United States in present grade as no vacancy presently existed
for him to accept promotion in the higher grade.  Effective 30 January
1984, the Adjutant General of Connecticut notified the NGB the applicant's
declination of promotion had been approved for a period of 3 years from 8
April 1983.

8.  Effective 30 September 1985, the applicant was separated from the ARNG
and transferred to the USAR unit.  On 12 June 1987, Headquarters, First U.
S. Army issued a promotion memorandum to the applicant.  The memorandum
stated the applicant was promoted as a Field Artillery major effective 1
October 1985 with a date of rank of 13 April 1983.

9.  The applicant provided a diploma showing he completed the Judge
Advocate Officer Advanced Course on 13 April 1987.

10.  The applicant was considered but not selected for promotion by the
1989 Reserve Components Selection Board (RCSB).  By memorandum dated
      8 October 1990, he was informed he had been considered and selected
for promotion to LTC by the 1990 RCSB.  His PED was shown as 15 April 1991.
 He was notified that a promotion memorandum would be published after he
met the requirements of Army Regulation 135-155, paragraph 4-10, and the
Senate confirmed him.

11.  The ABCMR's 24 February 2004 consideration of his case noted there was
no evidence of record, or evidence submitted by the applicant, that a
promotion memorandum promoting the applicant to LTC was ever issued.  The
applicant currently contends the 8 October 1990 memorandum was the
promotion memorandum.  The ABCMR's 24 February 2004 consideration of his
case also noted there was no evidence of record to show he completed the
Judge Advocate General's Corps Advanced Course.
12.  Conversation between the Board analyst and the Office of Promotions,
Reserve Components, U. S. Army Human Resources Command (USAHRC) on 21
December 2005 revealed the applicant had been deleted from the 1990
promotion list on 25 October 1990 and that the list had been confirmed by
the Senate on 27 October 1990.

13.  On 15 May 1992, the Office of Promotions, Reserve Components, U. S.
Total Army Personnel Command (currently designated USAHRC) responded to an
apparent query from the applicant concerning his promotion status.  The
applicant was informed that, since the records showed he had declined
promotion to major [while in the ARNG], his promotion to major [once
transferred to the USAR] had been adjusted to 1 October 1985 and his name
had been removed from the 1989 and 1990 promotion board results.  He was
also informed his PED to LTC had been adjusted to 30 September 1992 but,
based on his nonselection to LTC by the 1991 RCSB, his PED was further
advanced to 30 September 1993.

14.  The applicant was subsequently considered but not selected for
promotion to LTC by several promotion boards.  He was also considered by
several special selection boards but not selected for promotion to LTC.

15.  Several documents in the applicant's records, such as a 31 July 1996
letter from the U. S. Army Reserve Personnel Center, show the applicant's
rank as LTC.

16.  Effective 2 May 1997, the applicant was transferred to the Retired
Reserve in the rank of major.

17.  With the 24 February 2004 ABCMR consideration of the applicant's case,
the applicant had provided a letter to him from the Defense Finance and
Accounting Service (DFAS).  The letter stated that all of the pay
information DFAS had on him was in the pay grade of major, O-4.

18.  The applicant provided a letter dated 16 May 2005 from a Forensic
Examiner of Questioned Documents.  The forensic examiner stated that, in
October 2001, he had 10 documents bearing the applicant's known signature
and a copy of the 13 June 1983 memorandum in which the applicant declined
promotion.  The examiner stated, "As a result of the examinations I
conducted I concluded that the signature on the disputed document was
consistent (emphasis added) with
the known signatures that I had and was in all probability not made by
you."  The examiner stated the only qualification was due to the absence of
the original memorandum.

19.  Army Regulation 135-155 provides the policy and procedures for Reserve
Component promotions.  The regulation in effect at the time provided that a
major would be considered for promotion to LTC prior to completion of 7
years time in grade as a major and 12 years of commissioned service so they
could be advanced in rank on their PED.  The regulation also stated that an
officer selected for promotion could decline the promotion for a maximum of
3 years and would be retained on the promotion list for the period of
declination.  If not promoted on or before the end of the declination
period, the officer would be transferred from the unit and promoted.

20.  Army Regulation 135-155, paragraph 4-10a at the time provided the
general requirements to be met before being promoted.  Paragraph 4-10b
stated the effective date of the promotion would be computed as prescribed
in section III.
Section III provided that the effective date of promotion for unit officers
who declined promotion and were past their PED would be the date of
transfer to a nonunit status.  Promotion announcements for LTC and colonel
would not be accomplished until after Senate confirmation.  Promotion
announcements would be prepared by the promotion authorities and would
follow the format provided in the regulation for announcing officer
promotions.  The de facto status provided for in the regulation only
applied after a promotion had been announced.

DISCUSSION AND CONCLUSIONS:

1.  The applicant still provides no credible evidence to show his
declination of promotion while in the ARNG was forged.  The 16 May 2005
letter from the forensic examiner he provided makes contradictory
conclusions:  The examiner concluded the applicant's signature on the 13
June 1983 memorandum was consistent with the known signatures of the
applicant the examiner had, yet then he stated the signature was "in all
probability not made" by the applicant.

2.  More importantly, if the applicant had believed he did not decline the
promotion to major in 1983, there would have been no need for Headquarters,
First U. S. Army to have issued the applicant a promotion memorandum to
major (which incorrectly noted his date of rank to major was 13 April
1983), dated        12 June 1987, promoting him effective 1 October 1985.
The applicant provides no evidence to show he disputed the 12 June 1987
promotion memorandum on the grounds that he was already a major.

3.  The applicant contended the memorandum dated 8 October 1990 promoted
him to LTC.  (The Board accepts that the applicant was educationally
qualified for promotion to LTC.  Even though the 24 February 2004 Board may
not have had his Advanced Course diploma, it appears his promotion boards
had access to it.)

4.  However, the 8 October 1990 memorandum merely informed him he had been
selected for promotion.  That memorandum also informed him that a promotion
memorandum would be published after he met the requirements of Army
Regulation 135-155, paragraph 4-10 (which referred to effective dates of
promotion computations) and the Senate confirmed him.  That memorandum did
not state the Senate confirmed him.

5.  The applicant had been deleted from the 1990 promotion list on 25
October 1990.  The Senate confirmed the list on 27 October 1990 and the
applicant's name may have still been on the list at that time.  The
regulation stated that promotion announcements would be prepared by the
promotion authorities.  There is no evidence of record to show a promotion
memorandum was ever prepared and the applicant provides no evidence to show
one was ever prepared.

6.  Any documents that showed the applicant's rank as LTC contained an
error and were not official announcements that he had been promoted to LTC.
 He had been informed in May 1992 that his name had been deleted from the
1990 promotion list and he knew he had not been selected for promotion to
LTC by any subsequent promotion board.  If the applicant ever wore the rank
of LTC, he did so without official authorization from the proper promotion
authorities.  De facto status may only be applied after a promotion had
been announced.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__klw___  _ded____  _qas____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of
the ABCMR set forth in Docket Number AR2003083371 dated 24 February 2004.




                                  __Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008449                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060110                                |
|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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