RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            23 MAY 2006
      DOCKET NUMBER:   AR20050012741


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Carol Kornhoff                |     |Chairperson          |
|     |Mr. John Moeller                  |     |Member               |
|     |Mr. Edward 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, in effect, promotion reconsideration to the pay
grade of E-9.

2.  The applicant states, in effect, that he believes that his failure to
be selected for promotion to the pay grade of E-9 was due to the personal
or racial bias on the part of the sitting panel chief for the Signal Corps.


3.  The applicant provides a third party letter of support from a retired
sergeant major.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 June 1995.  The application submitted in this case is dated
26 August 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.  He initially enlisted in 1974 and served until he was honorably
discharged in the pay grade of E-6 on 12 December 1980 due to completion of
required service.  He immediately enlisted in the Florida Army National
Guard and served there until he again enlisted in the Regular Army on 17
December 1981.

4.  He remained on active duty through a series of continuous reenlistments
and was promoted to the pay grade of E-7 on 28 August 1986.  He was
promoted to the pay grade of E-8 on 1 March 1992.

5.  On 21 June 1994, a copy of the applicant’s personnel qualification
record was forwarded to the E-9 Promotion Selection Board.

6.  On 8 March 1995, the applicant submitted a request for voluntary
retirement to be effective 1 July 1995.  His request was approved on 13
March 1995.

7.  Accordingly, he was honorably released from active duty in the pay
grade of E-8 on 30 June 1995 and was transferred to the Retired List
effective 1 July 1995.  He had served 20 years, 8 months and 19 days of
total active service.

8.  The third party letter submitted by the applicant with his application
is from a retired sergeant major who states, in effect, that he served as
the applicant’s supervisor during two separate assignments and in his
opinion, their boss, a Signal Corps colonel who sat as the panel chief of
the E-9 selection board, was racially motivated and that he tried hard to
make the applicant’s life unbearable.  He further states that the applicant
was eminently qualified for and deserving of promotion to the pay grade of
E-9 and given his accomplishments over a distinguished career, the only
logical conclusion is that their boss prevented his being selected.  He
recommends that the applicant be granted an exception to policy and either
promoted to the pay grade of E-9 or granted a promotion re-look.

9.  Army Regulation 600-200, in effect at the time, served as the authority
for the conduct of selection boards.  It provides, in pertinent part, that
selection board members may not record their reasons nor give any reasons
for selection or nonselection.  Selections are based on relative
qualifications and the projected need in each MOS for E-7, E-8, and E-9.  A
Soldier within an announced zone of consideration may write to the
President of the selection board inviting attention to any matter he or she
feels is important in consideration of his or her records and are
considered privileged information and will not be filed in the OMPF.

10.  That regulation also provides for promotion consideration by the
Enlisted Standby Advisory Board (STAB) for those Soldiers who were not
considered by a regular board or whose records contained major material
error when reviewed by a regular board.  Soldiers in the secondary zone of
consideration are not eligible for consideration by a STAB.

11.  MILPER Message Number 06-053 announced the criteria for the Fiscal
Year 2006 E-9 Selection Board to be convened in June 2006.  The date of
rank (DOR) criteria announced in that message indicates that individuals
with 2 years DOR as of the convene date of the board will be considered in
the secondary zone of consideration.  Individuals with 3 or more years DOR
will be considered in the primary zone of consideration.  Soldiers who have
an approved retirement prior to the convene date of the board are
ineligible for consideration.  A review of the criteria for the last six E-
9 boards that were convened shows that the DOR criteria (2 year – secondary
and 3-year primary zone) have remained consistent and that the E-9 boards
have traditionally convened in the month of June.


DISCUSSION AND CONCLUSIONS:

1.  While it is unfortunate that the applicant was not promoted beyond the
pay grade of E-8, it is a well known fact that not everyone who is eligible
for promotion during a given selection board is selected because there are
normally more persons eligible than there are promotion allocations.
Accordingly, promotion boards are tasked with choosing the best qualified
Soldiers to meet the needs of the Army at the time.

2.  The applicant’s contention that his boss was prejudiced and that his
actions essentially caused him not to be selected for promotion have been
noted.  However, the applicant has failed to show through the evidence
submitted with his application or the evidence of record that such was the
case.

3.  Additionally, if the applicant believed that he had been wronged by his
boss at the time, he could have requested a commander’s inquiry be
conducted or filed a grievance through the chain of command, the Equal
Employment Opportunity (EEO) office or the Inspector General’s office.
There is no evidence to suggest that the applicant took any such actions.
Accordingly, it would be inappropriate for the Board to take any action in
this matter without appropriate supporting evidence, some 12 years after
the alleged incident occurred.

4.  It is also noted that at the time the applicant’s records were
forwarded to the E-9 Promotion Selection Board, he had only 2 years in
grade as an E-8, which is indicative that he was in all likelihood in the
secondary zone of consideration.  He applied for and received approval of
voluntary retirement prior to the convene date of the next board (1995)
which made him ineligible for consideration in the primary zone.  Soldiers
who are considered and not selected in the secondary zone of consideration
are not eligible for consideration by a STAB.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1995; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 June 1998.  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

____CK _  ___JM  __  ___EM__  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.




                                  ______Carol Kornhoff______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012741                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060523                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19950630                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 12                       |
|DISCHARGE REASON        |RETIREMENT                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |320/RECON                               |
|1.131.1000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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