RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 July 2006
      DOCKET NUMBER:  AR20050016038


      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. Lester Echols                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Ernestine I. Fields           |     |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 corrected to
show he qualified for a Reserve retirement.  He also requests that his
records be corrected to show he was promoted to lieutenant colonel (LTC).

2.  The applicant states he was discharged with over 18 years of service
and should have been retained in order to complete 20 years of service.
Managing retirement points and allocating them [to the correct RYE
(Retirement Year Ending)] was a constant challenge and often a seemingly
impossible task.  He also states that, pre-ROPMA (Reserve Officer Personnel
Management Act, enacted in 1996), officer promotions were based on “fully
qualified” status.  He was not selected for promotion to LTC despite being
qualified due to what he presumes to be erroneous and/or incomplete
records.

3.  The applicant provides officer evaluation reports (OERs) for the
periods ending 30 April 1973, 10 June 1974, 30 August 1975, 30 August 1976,
30 August 1977, 30 August 1978, 30 August 1979, 30 August 1980, 30 August
1981, and   30 August 1982; two Notifications of Promotion Status, dated 24
October 1988 and 11 October 1989; an ARPC Form 249-2-E (Chronological
Statement of Retirement Points) dated 13 July 2005; a Retirement Points
Accounting System printout dated 14 December 2005; a Statement of
Retirement Points dated 6 May 1982; a Command and General Staff College
diploma; a DD Form 214 (Armed Forces of the United States Report of
Transfer or Discharge) for the period ending 18 April 1972; and his
discharge letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 12 December 1989.  The application submitted in this case
is dated 28 October 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.  The applicant was born on 30 May 1946.  After having had prior enlisted
service, he was commissioned and entered active duty on 16 January 1970.
He was released from active duty on 18 April 1972 and was transferred to
the U. S. Army Reserve (USAR).

4.  On 14 March 1982, the applicant was promoted to major, O-4 in the
Signal Corps.  On 25 October 1986, he completed the Command and General
Staff College.

5.  By letter dated 24 October 1988, the applicant was informed he had been
considered but not recommended for promotion to LTC.  By letter dated
     11 October 1989, he was informed again he had been considered for
promotion but not recommended for promotion to LTC.

6.  By letter dated 24 November 1989, the applicant was informed he had
been twice considered for promotion and twice not selected.  Unless he had
a service obligation, was eligible for and requested transfer to the
Retired Reserve, or was credited with 18 or more but less than 20 years of
satisfactory Federal service for retired pay purposes, he would be
discharged within 90 days after the second selection board reported its
findings.  He was requested to elect one of four options (retention to
complete 20 years of qualifying service; discharge; transfer to the Retired
Reserve; or a formal retirement ceremony).

7.  The applicant apparently failed to make an election, and he was
discharged from the USAR effective 12 December 1989.  His last two RYEs (11
September 1988 and 11 September 1989) show he completed 15 retirement
points each.  Several RYEs (e.g., RYE 11 September 1982) show he completed
well in excess of 50 retirement points.

8.  The last OER available in the applicant’s records is one dated 30
August 1981.  The applicant provided one later OER, for the period ending
30 August 1982.

9.  In the processing of this case, an advisory opinion was obtained from
the      U. S. Army Human Resources Command – St. Louis.  That office noted
that, when the applicant was discharged in December 1989, the Retirement
Points Accounting System did not show he had completed 18 years of
qualifying service.  The system was corrected on 14 June 2005 and currently
shows he completed 19 years (and 2 days) of qualifying service for
retirement.  That agency recommended the applicant’s discharge be voided
and, in effect, that his records be corrected to show he completed 20 years
of qualifying service for retirement.

10.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.
11.  Title 10, U. S. Code, sections 12731 through 12738 authorize, upon
application, retired pay for Reserve component military service.  Under
this law, a Reserve Soldier must complete a minimum of 20 qualifying years
of service to be eligible for retired pay at age 60.  The term “good years”
is an unofficial term used to mean years in which 50 or more retirement
points are earned during each year and which count as qualifying years of
service for retirement benefits at age 60.

12.  Title 10, U. S. Code, section 14506 states, “Unless retained as
provided in section 12646…each reserve officer of the Army…who holds the
grade of major…and who has failed of selection to the next higher grade for
the second time…shall…be removed from the reserve active-status list….”

13.  Title 10, U. S. Code, section 12646(a) states that if on the date
prescribed for the discharge or transfer from an active status of a reserve
commissioned officer he is entitled to be credited with at least 18, but
less than 19, years of service, he may not be discharged or transferred
from an active status without his consent before the earlier of the date on
which he is entitled to be credited with 20 years of qualifying service or
the third anniversary of the date on which he would otherwise be discharged
or transferred from an active status.

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Officers other than General Officers), the version in effect at the
time, stated the selection board would base their recommendations for
promotion on impartial consideration of all personnel being considered.
The board would use a method of selection as prescribed:

      a.  Fully qualified:  (1) in the zone of consideration; (2) on active
duty or participating satisfactorily in Reserve training; (3) qualified
physically, morally, and professionally; (4) capable of performing the
duties of the next higher grade under mobilization conditions; (5)
educationally qualified (commissioned officers only); and (6) certain
criteria pertaining only to the special branches (which does not include
the Signal Corps); and

      b.  Best qualified:  To select those who are best qualified, the board
must first determine which members of a group are fully qualified.  The
best qualified are then selected from that group.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records erroneously showed he completed less than 18
years of qualifying service at the time he was discharged in December 1989
as a result of being twice nonselected for promotion to LTC.  His records
were later corrected to show he completed 19 years of qualifying service
for a Reserve retirement.  It would be equitable to redistribute his earned
retirement points to show he earned his 20th qualifying year for a Reserve
retirement during RYE    11 September 1988.

2.  The applicant was afforded several options prior to his being
discharged in December 1989.  Since there is no evidence to show he
responded to the letter affording him those options, and since he has since
turned age 60, there appears to be no requirement to void his December 1989
discharge.

3.  The applicant contended that his records should be corrected to show he
was promoted to LTC because pre-ROPMA officer promotions were based on
“fully qualified” status.  However, a board was still required to determine
whether an officer was fully qualified for promotion.  Such a determination
was not merely an administrative action.

4.  One of the criteria for determining whether an officer was fully
qualified was determining whether that officer was qualified physically,
morally, and professionally.  The applicant’s records may have been
incomplete, judging from the fact several OERs are missing from his
records.  However, he provided no evidence to show he used reasonable
diligence to ensure those OERs and/or other documents were provided for
consideration by those promotion boards.  In the absence of evidence to the
contrary, the Board presumes the applicant was not found by the promotion
selection boards to be qualified physically, morally, or professionally for
promotion to LTC.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 December 1989; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on    11 December 1992.  The applicant did not file
within the 3-year statute of limitations; however, based on the available
evidence it would be in the interest of justice to excuse failure to timely
file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__le____  __phm___  __eif___  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 partial 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:

      a.  redistributing the excess retirement points of the individual
concerned to provide him with a qualifying year of service for retirement
year ending          11 September 1988; and

      b.  showing he completed 20 years of qualifying service for a Reserve
retirement and is eligible for retired pay at age 60.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
correcting his records to show he was promoted to lieutenant colonel.




                                  __Lester Echols_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016038                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060718                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |136.04                                  |
|2.                      |131.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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