RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 May 2007
      DOCKET NUMBER:  AR20060015141


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 to show he was
promoted to Colonel (COL), O-6.

2.  The applicant states he was erroneously denied his clearly expressed
desire to accept promotion.  When he was selected prior to 1971 he was
compelled to decline promotion in writing because his civilian employment
was a National Guard position that was rated for a Lieutenant Colonel
(LTC), O-5 and acceptance meant termination.  When he was selected in 1971
and again in 1972, he advised his Commanding General, orally and in
writing, that he would not sign a declination but rather he opted to accept
promotion in the National Guard, if available, or in the U. S. Army Reserve
(USAR).

3.  The applicant states the National Guard Bureau (NGB) erroneously stated
in a 1st endorsement, dated 19 September 1972, ”…and the National Guard
Bureau had been subsequently advised, on or about 8 October, that you did
not wish to make a commitment at that time.”  He states NGB did not say who
so advised and there is nothing in writing to verify it.  It was not him,
and he does not know anyone else who could have done it.  He had stated, in
a 2d endorsement to NGB, dated 27 September 1972, that “I did not sign a
declination last year and I will not sign one this year.”

4.  The applicant states he did not follow up on the 1972 actions because
he was told by the Commanding General, New York Army National Guard
(NYARNG) that he would recommend the applicant for promotion anyway, aside
from the selection board action.  Unfortunately, the request was denied by
NGB due to a policy statement by an Assistant Secretary of the Army.  A
policy is hardly a regulation or ruling, and can be waived under mitigating
circumstances.  In view of the fact he was twice selected and twice denied
in the two preceding years, it could have been waived.

5.  The applicant provides a 1st endorsement dated 17 July 1971; an RCPAC
letter dated 16 June 1971; a comment (CMT) 2 dated 28 August 1972; a 1st
endorsement dated 19 September 1972; a State of New York, Division of
Military and Naval Affairs letter dated 7 August 1972; a 2d endorsement
dated              27 September 1972; a State of New York, Division of
Military and Naval Affairs letter dated 20 December 1973; a New York
Element – Joint Force Headquarters memorandum dated 2 October 2006; a DA
Form 1861 (Transcript of Military Record); three pages of his DA Form 66
(Officer Qualification Record); a WD AGO Form 53-98 (Record and Report of
Separation); and a DA Form 1059 (title of form not legible but probably
Academic Evaluation Report).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 January 1978, the date he was separated from the ARNG.  The
application submitted in this case is dated 16 October 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 born on 8 January 1923.  After having had prior Army
of the United States and USAR service as a commissioned officer, he was
appointed as a captain in the ARNG around August 1951.  He was promoted to
LTC on 2 May 1960.

4.  By letter to NGB dated 7 August 1972, the applicant stated his name
appeared on the list published in the “Army Times” for promotion to COL.
To date, he had not received any official notification of such selection
nor were instructions regarding options available to him, as on past
occasions.  He noted that the previous year he was given a very short time
[until 17 July 1971] to indicate his choice.  He requested, and was
granted, an extension [until            31 August 1971].  However, when he
was unable to resolve the matter with his employer before the deadline, NGB
administratively assumed declination on his part and informed him his name
had been removed from the promotion list.

5.  By CMT 2 dated 28 August 1972, the applicant stated he decided not to
sign the declination of promotion.  He stated he believed it was unjust,
inequitable, and discriminatory that an ARNG officer should be required,
because of his situation, to decline a promotion for which he was selected
while a USAR officer was automatically promoted.  He stated it was his
decision not to decline the promotion but rather to accept it in whatever
status was available to him either in the ARNG or the USAR.

6.  By 1st endorsement dated 1 November 1972, NGB informed the NYARNG that
inasmuch as the applicant had elected to accept his promotion whether it be
in the ARNG or in the USAR, it was necessary that he be either promoted in
the NYARNG or transferred to the appropriate USAR control group for the
purpose of accepting his promotion in the USAR.  NGB noted the applicant
should be advised that since all positions in the ARNG were unit positions
for which the grades of incumbents were specifically delineated, an
appropriate position vacancy must exist for the grade to which being
promoted.  NGB noted it was the same way in the USAR.  If a USAR unit
officer accepted promotion, the absence of an appropriate position vacancy
required that he be transferred to an appropriate control group.  In both
the ARNG and the USAR, unit officers who were selected for promotion to the
grade of COL under the mandatory consideration provisions had the option of
declining the promotion.  Thus, inequity in that regard between the two
reserve components was not discernible.

7.  By Office of the Adjutant General, U. S. Army Administration Center
(later redesignated RCPAC) letter dated 21 May 1973, the applicant was
informed he had been considered for promotion to COL but was not selected.

8.  In a 20 December 1973 letter to NGB, the Commanding General, NYARNG,
noted the applicant was presently assigned to a COL position and wished to
promote him to COL.

9.  On 17 June 1974, the State of New York, Division of Military and Naval
Affairs requested the applicant’s retention until 16 June 1982, at which
time he would be eligible for a State retirement.

10.  By 1st endorsement dated 18 September 1974, NGB noted retention for
more than 2 years beyond an officer’s mandatory removal date could be
authorized by the Chief, NGB only if it was necessary to achieve
eligibility for Civil Service retirement.  Since the applicant would become
eligible for an immediate annuity on 7 January 1978, the Chief, NGB was
without authority to authorize retention beyond that date; however,
provided the applicant remained otherwise qualified, he could be retained
in an active status until 7 January 1978.

11.  By RCPAC letter dated 7 October 1974, the applicant was informed he
had been considered for promotion to COL but was not selected.

12.  By letter to NGB dated 14 January 1975, the applicant stated he was
not granted his expressed options in 1971 or 1972 although he was selected
for promotion several times and offered options each time.  He stated he
was denied [a unit vacancy] promotion on a technicality that appeared
arbitrary and that did not exist until sometime after the recommendation
for promotion was initiated.

13.  In his 14 January 1975 letter, the applicant stated that after his
selection by the annual promotion board in 1971 and 1972, he expressed his
desire very explicitly, orally and in writing, to exercise his option of
accepting promotion with assignment to the USAR if it was not available to
him in the National Guard.  He never signed a promotion declination.  He
stated he did not pursue the matter closely either time because of
uncertainty as to his rights and full effect of the various options (which
were never fully explained), delays in advising him of job and National
Guard status, a reluctance to create controversy, a faith in the justice of
the system, and a firm belief that he would be promoted eventually anyway.
He also stated that, when informed on 24 May 1973 by the Chief of Staff to
the Governor of New York that he was being promoted, he saw no point in
pushing a moot issue.  However, that also was being denied him on another
technicality.

14.  By letter dated 12 February 1975, NGB informed the applicant that a
careful review was again made of his case.  NGB noted that, although he was
subject to removal from an active status on 9 October 1971, he was retained
under Secretarial policy to 9 January 1978 to qualify for a State annuity.
As a retained officer, his opportunity for promotion in a unit vacancy and
under the mandatory provisions of Title 10 continued, the former being
governed by Department of Army policy.

15.  In their 12 February 1975 letter, NGB noted that a mandatory promotion
with continued assignment in the ARNG was contingent upon availability of a
unit vacancy in the higher grade.  Department of the Army policy prior to 1
September 1973 precluded Secretarial consideration for a unit vacancy
promotion of a retained officer if nonselected by the most recent
promotion board, and since that date, if nonselected by any promotion
board.

16.  In their 12 February 1975 letter, NGB noted that in response to the
applicant’s query regarding election of options, correspondence advising
him of his selection for promotion to COL under the mandatory provisions by
the 1971 and 1972 boards were forwarded to him through the State advising
him of the options available.  NGB noted he was offered three specific
options each time:

      (a)  acceptance of promotion with continued assignment in the ARNG;

      b.  declination of promotion with continued assignment in the ARNG in
his present grade; or

      (c)  acceptance of promotion to the USAR.

17.  In their 12 February 1975 letter, NGB stated his file did not contain
a record of a specific commitment by him either year as to only one of
those options.  Lacking receipt of a singular commitment on his part, the
Bureau determined his continued service in grade to be in the best interest
of both him and the NYARNG.
18.  In their 12 February 1975 letter, NGB noted that when he was
recommended for unit vacancy promotion by the Chief of Staff to the
Governor of New York he was no longer qualified for promotion under
Department of the Army policy, effective 1 September 1973, pertaining to
unit vacancy promotion of officers in a retained status because he had been
nonselected by the 1970 and 1973 promotion boards.  NGB noted that policy
was consistent with applicable law and, in part, noted it was a reasonable
exercise of the discretionary authority of the Secretary to specify the
criteria governing the promotion of retained officers.

19.  By RCPAC letter dated 25 September 1975, the applicant was informed he
had been considered for promotion to COL but was not selected.

20.  By RCPAC letter dated 27 October 1976, the applicant was informed he
had been considered for promotion to COL but was not selected.

21.  Effective 7 January 1978, the applicant was separated from the ARNG
and transferred to RCPAC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that he was erroneously denied his clearly
expressed desire to accept promotion.  However, as the evidence of record
shows and as he acknowledged, he did not clearly express his desire to
accept promotion.  He was offered one of three options; he elected two
options (“to accept promotion in the National Guard, if available, or in
the U. S. Army Reserve”).

2.  By electing his option(s) in that manner, the applicant was effectively
asking someone else to elect the option for him.  No one could have or
should have been expected to do that for the applicant.  As it appears
there was no COL position vacancy in the NYARNG at the time, the
applicant’s other option (if he wanted the promotion) was to accept
promotion in the USAR.  However, he would not have been placed in a unit in
the USAR.  He would have been placed in a control group.  That would have
meant he would be giving up opportunities for drill (and drill pay).  As
stated before, no one else could have made that type of decision for him.

3.  The applicant was a senior commissioned officer.  If he was uncertain
as to his rights and full effect of the various options (which he contends
were never fully explained), he had a responsibility to himself to search
out answers to his questions.

4.  The applicant contended that he did not follow up on the 1972 actions
because he was told by the Commanding General, NYARNG that he would
recommend the applicant for promotion anyway.  In his 14 January 1975
letter   to NGB the applicant contended that he stated he was denied [a
unit vacancy] promotion on a technicality that did not exist until sometime
after the recommendation for promotion was initiated.  However, it is noted
that the policy changed (the “technicality) on 1 September 1973.  The
Commanding General, NYARNG did not recommend the applicant for a unit
vacancy promotion until    20 December 1973.

5.  It is acknowledged that it is likely the policy could have been waived.
 However, at this late date this Board will not substitute its judgment for
that of the appropriate authority at the time.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 January 1978; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on           6 January 1981.  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

__pms___  __dkh___  __eem___  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.




                                  ___Paul M. Smith______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015141                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070501                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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