RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060008253 


	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.



Acting Director



Analyst

The following members, a quorum, were present:



Chairperson


Member


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, an adjustment of his dates of rank to captain (CPT) and major (MAJ) in the United States Army Reserve (USAR).

2.  The applicant essentially states that his dates of rank as a commissioned officer should be as follows:

	a.  second lieutenant (2LT):  11 January 1967;

	b.  first lieutenant (1LT):  11 January 1968;

	c.  CPT:  11 January 1969; and

	d.  MAJ:  should have been 11 January 1976. 

3.  The applicant provides orders promoting him to 2LT in the USAR with a date of rank (DOR) of 11 January 1967, orders promoting him to 1LT in the Army of the United States (AUS) with a DOR of 11 January 1968, orders promoting him to CPT in the AUS with a DOR of 11 January 1969, a letter, dated 1 December 1979, from the Reserve Components Personnel and Administration Center, St. Louis, Missouri which indicated that he was to be promoted to MAJ with a DOR of 9 January 1980 [which was subsequently voided because he retired on 
30 September 1979], a letter, dated 6 August 1979, showing that he had a projected promotion eligibility date (PED) of 9 January 1980, and a letter, dated on or about 18 October 1991, from the United States Army Reserve Personnel Center, which informed the applicant that he was advanced on the retired list to the rank of CPT, which was the highest grade he satisfactorily held, in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
30 September 1979, the date of his retirement.  The application submitted in this case is dated 6 June 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.  The applicant’s military records show that he was commissioned in the USAR as a 2LT on 11 January 1967, and concurrently ordered to active duty.  While on active duty, he was temporarily promoted to 1LT in the AUS with a DOR on 
11 January 1968. He was also temporarily promoted to CPT in the AUS with a DOR of 11 January 1969.  

4.  On 5 October 1973, the applicant was released from active duty.  In accordance with the laws and regulations in effect at the time, his temporary promotions to 1LT and CPT in the AUS were vacated at the time of his release from active duty.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued to him at the time of his release from active duty on 5 October 1973 also shows that his permanent promotion to CPT in the USAR was effective 10 January 1973.

5.  The applicant’s military records also show that he was promoted to 1LT in the USAR with a DOR on 11 January 1969.  They also show that he was promoted to CPT in the USAR with a DOR on 10 January 1973.

6.  The applicant essentially stated that he should have been promoted to MAJ in the USAR on 11 January 1976, or 7 years from his DOR to CPT in the AUS.  However, promotion to MAJ in the USAR required 12 years time in service or 
7 years time in grade from his USAR CPT DOR, and the applicant’s PED was the later of the two dates.  As the applicant’s service as a commissioned officer began on 11 January 1967, he completed 12 years time in service on 11 January 1979.  As he was promoted to CPT in the USAR on 10 January 1973, he would have completed 7 years time in grade on 10 January 1980.  However, the applicant retired on 30 September 1979.

7.  The applicant provided a letter, dated 1 December 1979, from the Reserve Components Personnel and Administration Center, St. Louis, Missouri which indicated that he was to be promoted to MAJ with a DOR of 9 January 1980.  However, the applicant was advised in a letter, dated on or about 18 October 1991, that because he voluntarily retired 3 months prior to his PED, his promotion to MAJ had been officially voided.

8.  During the processing of this case, an advisory opinion was obtained from the Office of Reserve Component Promotions, United States Army Human Resources Command, St. Louis, Missouri.  The advisory opinion essentially stated that because the applicant retired on 30 September 1979, before his PED, his promotion to MAJ was voided.  It also recommended that the applicant’s request be denied.

9.  A copy of the advisory opinion was forwarded to the applicant for comment or rebuttal, and he was provided 30 days to have the opportunity to submit a rebuttal to the advisory opinion.  The applicant failed to respond within the time allowed. 

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his dates of rank to CPT and MAJ in the USAR should be corrected.

2.  While the Board does not doubt the veracity of the applicant’s contention that he should have been promoted to MAJ in the USAR on 11 January 1976, his temporary promotion to CPT in AUS with a DOR on 11 January 1969 was vacated when he was released from active duty on 5 October 1973.  As a result, his PED to MAJ in the USAR was 10 January 1980, or 7 years time in service from his promotion to CPT in the USAR which occurred on 10 January 1973.  However, as the applicant voluntarily retired prior to his PED to MAJ, he was not promoted.

3.  The applicant failed to provide any evidence which shows that an error or injustice occurred.  Absent, such evidence, regularity must be presumed in this case.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 September 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
29 September 1982.  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

_KLW___  __E.F.   __  __CD___  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.




____Kenneth L. Wright_________
          CHAIRPERSON




INDEX

CASE ID
AR20060008253
SUFFIX

RECON

DATE BOARDED
20070327
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
129.0500.0000
2.

3.

4.

5.

6.