RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  5 March 2007
	DOCKET NUMBER:  AR20060004570 


	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.


	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 military records be corrected to show that his rank at the time of his retirement was major (MAJ).

2.  The applicant essentially states that since his original 1975 MAJ, Army of the United States (AUS) Promotion Selection Board was voided by the Secretary of the Army because the board did not include reserve officers, he should have been considered regardless of his status on the re-look board.

3.  The applicant provides his retirement orders, a letter, dated 26 January 2006, from the applicant to the National Personnel Records Center, a Standard Form 180 (Request Pertaining to Military Records), a letter, dated 22 March 2006, from the applicant to the Army Review Boards Agency, and a letter, dated 20 February 2006, from the National Personnel Records Center in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
30 June 1976, the date of his retirement.  The application submitted in this case is dated 22 March 2006.

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.  On 20 May 1975, a Department of the Army Promotion Selection Board convened to consider officers for temporary AUS promotion to MAJ.  In a letter, dated 15 September 1975, the United States Army Military Personnel Center informed the applicant, who was then a captain (CPT) in the AUS, that he was not recommended for promotion to MAJ.

4.  As a result of his non-selection to promotion to MAJ, the applicant had a mandatory release from active duty date of 1 July 1976.  On 25 March 1976, the applicant submitted his request for voluntary retirement.  As a result, on 30 June 1976, he was released from active duty and, on 1 July 1976, he was placed on the Retired Reserve.
5.  The Department of the Army Historical Summary (DAHSUM) for fiscal year 1976 states, in pertinent part, that in January 1976, the Secretary of the Army approved recommendations by the Army Board for Correction of Military Records to give additional opportunities for promotion to officers not selected for certain AUS grades in 1974 and 1975.  The Secretary concluded that the Army’s failure to appoint reserve officers to the 1974 and 1975 AUS promotion boards may have resulted in an injustice.  New boards, however, recommended promotions for 1,165 reserve officers who had not been selected by the original boards. Of these, 325 were former officers no longer on active duty.

6.  The DAHSUM for fiscal year 1977 states, in pertinent part, that in January 1976, the Secretary of the Army had established promotion reconsideration boards, known as re-look boards, to give another chance to officers not selected for temporary promotion to the grades of lieutenant colonel, MAJ, CW4, and CW3 in 1974 and 1975 by boards that did not include reserve officers. The 
re-look boards that met between 30 March and 18 October 1976 recommended 1,177 officers for promotion.  Additional boards met later in fiscal year 1977.  By the end of the year, a total of 1,203 officers had been recommended for promotion and 1,006 of these had been promoted, including 204 former officers who returned to active duty in their new grades.  

7.  During the processing of this case, an advisory opinion was obtained from the Promotions Branch, United States Army Human Resources Command, Alexandria, Virginia.  After thorough research, that office recovered archived records of the 1975 MAJ, AUS Promotion Selection Board and the 1975 MAJ, AUS Re-Look Board that convened following the discovery that there was not a Reserve Officer Representative on the original 1975 board.  The advisory opinion also stated that the applicant was a non-select on the first board, but was selected by the re-look board.  It also stated that is was undetermined when the re-look board was convened and approved, and that their office cannot determine if the applicant was retired prior to the results being published.  To clarify how that office determined that the applicant was selected by the re-look board, the analyst for this case obtained clarification that “X” marks on the computer-generated selection lists indicated non-selection, and that the “-” marks indicated that an officer was selected for promotion. 

8.  A copy of the advisory opinion was forwarded to the applicant for comment.
In a letter, dated 15 February 2007, the applicant responded by essentially referring to the original selection list, and that he had a sequence number of 2554, and that another officer by the last name of Porter, who was selected for promotion by the original 1975 MAJ board, had a sequence number of 2638.  He also stated, in pertinent part, that although it is not known when the 1975 MAJ, AUS Re-Look Board convened, or when it was approved, he was still on active duty on 28 January 1976 when the Secretary of the Army ordered the 1975 MAJ, AUS Re-Look Board, and should have been authorized an extension to his mandatory release from active duty date until the results of the re-look board were known.  It was noted that the officer by the last name of Porter, who had a higher sequence number than the applicant, and who was selected by the original 1975 MAJ, AUS Promotion Selection Board, stated in an e-mail that his date of rank to MAJ was 6 May 1976, which was prior to the applicant’s retirement.

9.  Although the applicant was selected for promotion to MAJ by the 1975 MAJ, AUS Re-Look Board, there is no evidence in his military records that any representative of the Department of Army notified that applicant of his promotion selection, or that if he was selected after his retirement date, that he was offered an opportunity to return to active duty in the rank of MAJ.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his military records be corrected to show that his rank at the time of his retirement was MAJ.

2.  It is clear that the applicant suffered an initial injustice when the original 1975 MAJ, AUS Promotion Selection was not properly constituted, as there was not a 
Reserve Officer Representative on that board.  The Secretary of the Army at the time partially rectified this injustice by ordering a re-look board, which subsequently selected the applicant for promotion; however, it appears that the applicant was forced to retire due to a mandatory release date of 30 June 1976,  which would not have been the case had the original board been properly constituted and he was selected back in 1975 at the time of the original board.  

3.  The Board also believes that the applicant suffered a second injustice when, as a result of the Secretary of the Army’s decision on 28 January 1976 to order a re-look board for 1975 MAJ, AUS Promotion Selection Board, the applicant was not automatically allowed to remain on active duty until the results of the re-look board were announced.  In either event, the Board believes that if the original 1975 MAJ, AUS Promotion Board had been properly constituted, as the re-look board was that selected the applicant for promotion to MAJ was, he would have been promoted to MAJ not later than 6 May 1976, the date that an officer by the last name of Porter, who had a higher sequence number than the applicant, was promoted to MAJ.  He also would not have had to submit his request for retirement, as his mandatory release from active duty date of 30 June 1976 would no longer have existed.  

4.  While there is no evidence in the available records to show that any representative of the Department of the Army notified the applicant of his promotion selection by the 1975 MAJ, AUS Re-Look Board, or offered to return him to active duty in the rank of MAJ, it was noted that of the 325 officers who were no longer on active duty at the time the re-look board results were released, 204 former officers returned to active duty in their new grades as a result of the re-look boards, which suggests that some sort of notification was initiated by the Department.  The unknown issue in this case that is not present is what notification was made and if the applicant responded to the notification.

5.  Although it is clear that an injustice has occurred, it is also clear that the applicant has not exercised due diligence in bringing the injustice to light in a timely manner.  Inasmuch as the Statute for applying to the Board is 3 years and since the applicant has waited 30 years before applying, any relief granted should be effective on the date of his application to the Board.

6.  In view of the foregoing, and in the interest of justice, the Board finds that the applicant is entitled to be promoted to the rank of MAJ, with a date of rank of 
6 May 1976, as an exception to policy with regard to time served in that grade, that he be placed on the Retired List in the rank of major and that he be granted  entitlement to all back pay and allowance due to him as a result of his promotion to MAJ effective 22 March 2006, the date of his application to the Board.

7.  Records show the applicant should have discovered the alleged error now under consideration on 30 June 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 June 1979. Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file based on the relief being granted in this case.

BOARD VOTE:

__LS ___  ___JR ___  __SF ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for 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 promoting him to the rank of MAJ, with a date of rank of 6 May 1976, as an exception to policy with regard to time served in that grade, that he be placed on the Retired List in the rank of major and that he be granted  entitlement to all back pay and allowances due to him as a result of his promotion to MAJ, effective 22 March 2006, the date of his application to the Board. 




_____ Linda Simmons________
          CHAIRPERSON

























INDEX

CASE ID
AR20060004570
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070410
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
131.0000.0000
2.
131.0900.0000
3.

4.

5.

6.