RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 April 2007
      DOCKET NUMBER:  AR20060009548


      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. Gerard W. Schwartz            |     |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 that his records be corrected by promoting him
to lieutenant colonel.

2.  The applicant states that he was selected for promotion to lieutenant
colonel by the 1993 Lieutenant Colonel Promotion Board.  He was never
notified of his selection, and had he known he would have withdrawn his
retirement and remained on active duty to accept the promotion.  He
discovered the error when he returned to active duty as a voluntary retiree
recall.  He received the selection letter from the promotion board in
September 2005.  The board results and selection letter were both done
while he was still on active duty.

3.  The applicant provides a copy of his promotion selection notification
letter, his retirement orders, and a copy of his DD Form 214 (Certificate
of Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 December 1983.  The application submitted in this case is
dated 28 July 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 was commissioned as a second lieutenant from the Reserve
Officers Training Corps (ROTC) on 16 December 1973.  He was promoted to the
grades of first lieutenant, captain, and major on 11 May 1976, 10 May 1980,
and 9 May 1987, respectively.  He served in Germany from 11 December 1974
to
3 May 1977.




4.  The applicant served on active duty in the Active Guard Reserve from
December 1973 to December 1976, and from December 1980 until his retirement
in December 1993.

5.  The applicant was notified that he was being considered for promotion
to lieutenant colonel, by the 1993 Lieutenant Colonel Promotion board,
scheduled to convene on 28 September 1993.

6. On 10 September 1993, the applicant voluntarily submitted a DA Form 4187
(Personnel Action) requesting that he be granted an early retirement
effective
1 January 1994.

7.  On 12 October 1993, his request for a voluntary early retirement was
approved.

8.  Orders P-10-010193, U.S. Army Reserve Personnel Center, St. Louis,
Missouri, dated 7 October 1993, directed the applicant's release from
active duty with an effective date of 31 December 1993, and placement on
the retired list effective 1 January 1994.

9.  On 29 November 1993, the applicant was notified that he had been
selected for promotion to lieutenant colonel, under the criteria of the
promotion board that convened on 28 September 1993.  His notification
letter explained that he had to remain in an active status in order to be
promoted, and that his selection required confirmation by the United States
Senate before issuance of a promotion memorandum.  That notification was
sent to the same address that the applicant entered on his application to
the Board.

10.  In the processing of this case an Advisory Opinion was obtained from
the Chief, Special Actions Branch, Office of Promotions, Reserve
Components, which stated that the officer was identified and considered by
the 1993 Department of the Army Reserve Components Selection Board that
convened on 28 September 1993.  The officer was notified through his chain
of command that be was being considered for promotion, however, he still
put in his request for early retirement.  The applicant does not contend
that he was not notified of his promotion consideration.  The applicant was
properly considered by the promotion board, however, he could not be
promoted because he was not in an active status when the board was approved
by the Secretary of the Army on
3 January 1994, or when the Senate confirmed the board results on 9
February 1994.  The opinion recommended that the applicant's request be
denied.


11.  The applicant was provided a copy of the Advisory Opinion and
submitted a rebuttal in which he states if he had been notified in a timely
manner he would have pulled his retirement request and would have still
been in an active status.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Officers Other than General Officers) in effect at the time,
provided in pertinent part, that officers would be removed from the
promotion list if they were removed form an active status before promotion
was finalized.

13.  Army Regulation 135-155, also provides in pertinent part, that an
officer who has been recommended for promotion to the next higher grade
must meet the following requirements before being promoted:  The officer
must be in an active Reserve status, complete the service requirements, be
medically qualified, have a favorable security screening, and must meet the
standards of the Army Weight Control Program (AR 600-9).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly considered and recommended for promotion to
lieutenant colonel by the board that convened on 28 September 1993.
However, his name was removed from the recommended list because he was not
in an active status at the time the promotion was finalized.

2.  The applicant was aware that he was being considered for promotion to
lieutenant colonel by the board that convened on 28 September 1993.
However, he elected to submit his request for early retirement on 10
September 1993, with a requested separation date of 1 January 1994.

3.  Evidence of record shows that a congratulatory letter dated 29 November
1993 was forwarded to the applicant, which was prior to his separation, and
was addressed to the applicant’s current address.  While the applicant
claims that he did not receive this letter until September 2005, there is
no evidence to support that contention and there is no documentation which
would indicate that the delivery of the notification letter was delayed.
Nevertheless, even if the applicant did not receive this letter until 21
months after his separation date, it would not be sufficient grounds to
approve his request.  The applicant was a seasoned Soldier and was aware of
the criteria for promotion to lieutenant colonel.  If the applicant was
concerned about the possibility of being selected for promotion to
lieutenant colonel he would have opted to submit his retirement after the
results of the board had been determined.  In addition, there is no
evidence or indication that the applicant was in a lieutenant colonel’s
position at the time, which is a prerequisite for promotion.
4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 December 1993; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 December 1996.  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

___JM___  __TR ___  __RN ___  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.



                                  ________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009548                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070417                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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