RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 March 2007
      DOCKET NUMBER:  AR20060009909


      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      |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Roland S. Venable             |     |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 consideration to colonel
under the 1996 year criteria.

2.  The applicant states, in effect, in 1996, he was in the zone for
consideration for promotion to colonel and his packet was never submitted
to the United States Army Reserve (USAR) promotion board.  He adds that he
was in the primary zone for the 1996 colonel promotion board based on time
in grade and time in service.  His promotion packet should not have been
pulled because his efficiency ratings had always been outstanding.  Only
the board through Army promotion guidance should have made that
determination.

3.  The applicant summarizes by stating, in effect, while supporting
Operation Iraqi Freedom as a retiree recall, he was asked by general
officers why he was not a colonel.  He told them his records had not gone
before a colonel promotion board while he was on active duty as an Active
Guard Reserve (AGR) lieutenant colonel, and even after being in the service
for over 23 years.

4.  In support of his application, the applicant provides copies of his US
Army Human Resources Command (AHRC), Reserve Record; his Chronological
Statement of Retirement Points; an approved recommendation for award of the
Bronze Star Medal, the Award Narrative for the Bronze Star Medal, and the
Bronze Star Medal Certificate; and his officer evaluation reports for the
periods ending 6 May 1996 and 31 January 1997.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 July 1997, the convening date of the 1996 Colonel
Reserve Components Selection Board (RCSB).  The application submitted in
this case was submitted on 4 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's military records show that he was appointed in the
USAR, in the rank of second lieutenant, on 5 May 1974.  He entered on
active duty on 4 June 1986 and was promoted to captain effective 8 August
1978.

4.  The applicant was released from active duty for failure of selection
for permanent promotion to the rank of captain on 8 January 1986.  On his
release from active duty he was transferred to the USAR Control Group
(Reinforcement).

5.  The applicant was promoted to major in the USAR, with a date of rank
of 18 May 1986 and with an effective date of 1 January 1987.

6.  The applicant was ordered to active duty in an AGR status and entered
active duty on 13 September 1987.  He was promoted to lieutenant colonel in
the USAR with an effective date of 1 November 1993, with a date of rank of
17 May 1993.

7.  The Secretary of the Army established the promotion zone for the 1996
Colonel RCSB which was convened on 16 July and recessed on 16 August
1996.  The zone of consideration included all officers with dates of rank
for lieutenant colonel of 1 January 1993 and earlier.

8.  The applicant was separated for the purpose of retirement with
sufficient service for retirement, in the grade of lieutenant colonel, on
31 March 1997.  He was transferred to the Retired Reserve.

9.  Based on completion of the required 5 years maximum time in grade, his
promotion eligibility date (PED) for colonel was 16 May 1998.

10.  The Soldier Management System, AHRC, St. Louis, shows the applicant
was recalled to active duty from his retired status with a reporting date
to active duty of 10 July 2005 and an ending date of 9 July 2007.

11.  In an advisory opinion, dated 10 August 2006, the Chief, Special
Actions, Office of Promotions, Reserve Components, HRC – St. Louis,
Missouri, stated that a thorough review of the applicant's official
military personnel file revealed that the established zone of
consideration for the 1996 Colonel RCSB was for lieutenants colonel with a
date of rank of 1 January 1993 and earlier.  The applicant was not in the
zone of consideration for the 1996 board based on his date of rank of 17
May 1993.  The zone of consideration for the 1997 Colonel RCSB that was
convened on 15 July 1997 and adjourned on 15 August 1997, was for
lieutenants colonel with a date of rank of 1 January 1994 and earlier.

12.  The Chief, Special Actions, Office of Promotions, continued by
stating that Army Regulation (AR) 135-155, dated 1 September 1994, states
to be eligible for consideration for promotion to the next higher grade,
an officer must be in an active status and meet the service requirements.
Based on the applicant having being placed in the Retired Reserve as of 31
March 1997, and in view of the convening date of the 1997 RCSB [15 July
1997], the applicant was not considered by the 1997 RCSB.

13.  The advisory opinion was forwarded to the applicant for
acknowledgement and or rebuttal on 9 January 2007.  He did not respond.

14.  AR 135-155, in effect at the time, prescribed the policies and
procedures for the promotion of Reserve officers.  This regulation
specified that promotion from lieutenant colonel to colonel required
completion of 5 years maximum time in grade in the lower grade.  To be
eligible for consideration for promotion to the next higher grade, an
officer must be in an active status and meet the service requirements.
This regulation further specified that the Secretary of the Army or his or
her designee will establish the zone of consideration for each mandatory
promotion board for commissioned officers.

15.  AR 135-155, in effect at the time, also specified that promotion
consideration and/or reconsideration by a standby advisory board may only
be based on erroneous non-consideration or material error, which existed
in the record at the time of consideration.  Material error in this
context is one or more errors of such a nature that, in the judgment of
the reviewing official (or body), it caused an individual’s non-selection
by a promotion board and, that had such error(s) been corrected at the
time the individual was considered, a reasonable chance would have
resulted that the individual would have been recommended for promotion.
The regulation further specifies that only critical elements are a basis
for consideration by a standby advisory boar.  Critical elements are
military education, officer evaluation reports, and the Silver Star or
higher award.

16.  Title 10, United States Code (USC), section 12307 (Retired Reserve),
specifies that a member in the Retired Reserve may, if qualified, be
ordered to active duty without his/her consent, but only as provided in
section 688 or 12301 of Title 10.  A member of the Retired Reserve under
section 12641(b) of this title who is ordered to active duty or other
appropriate duty in a retired status may be credited under Chapter 1223
of this title with service performed pursuant to such order.  A member in
a retired status is not eligible for promotion or for consideration for
promotion as a Reserve.
DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was promoted to lieutenant colonel
effective 1 November 1993, with a date of rank of 17 May 1993.

2.  The established zone of consideration for the 1996 Colonel RCSB was
for lieutenants colonel with a date of rank of 1 January 1993 and earlier.
 Based on the applicant's date of rank, 17 May 1993, he was not in the
zone of consideration for the 1996 Colonel RCSB.  He was therefore not
eligible for consideration for promotion to colonel by the 1996 Colonel
RCSB.

3.  The zone of consideration for the 1997 Colonel RCSB that was convened
on 15 July 1997 and adjourned on 15 August 1997, was for lieutenants
colonel with a date of rank of 1 January 1994 and earlier.  The applicant
was not considered for promotion by the 1997 Colonel RCSB because he was
separated for the purpose of retirement on 31 March 1997 and was
transferred to the Retired Reserve on 1 April 1997.  To be eligible for
consideration for promotion to the next higher grade, an officer must be
in an active status and meet the service requirements.

4.  In view of the circumstances in this case, the applicant is not
entitled to promotion consideration to colonel under the 1996 or the 1997
year criteria.  He has not shown error, injustice, or inequity for the
relief he now seeks.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 July 1997; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
15 July 2000.  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

____J___  __LDS __  _RSV ___  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.




                                  ______Linda D. Simmons___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009909                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070322                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]