RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 July 2007
	DOCKET NUMBER:  AR20060015308 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. John G. Heck

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, that his non-selection for promotion to Brigadier General (BG/O-7) by the July 1993 Board be ruled as an injustice to him; that he now be reconsidered for promotion to BG/O-7, using the proper procedures/rules/instructions; that if he is considered and selected for promotion, he be promoted on the date that he would have been promoted if selected by the July 1993 Board; and that he be given all back pay and allowances.

2.  The applicant states, in effect, that in the Spring of 1991, he was selected for the position of Chief of Staff of the 103rd COSCOM (Corps Support Command), a BG on mobilization position.  In the Spring of 1993, he was selected as the Commander, 205th Light Infantry Brigade (SEP [separate]), a "supported" BG position.  His records were sent to the July 1993 Promotion Board for promotion to the rank of BG/O-7.  He was non-selected due to the fact that in 1968, when he was a lieutenant, he received an Article 15, under the UCMJ (Uniform Code of Military Justice).  

3.  He was surprised since this information had always been in his record and yet he was selected for promotion to O-6, selected to attend both Command & General Staff College (Honor Graduate) and the Army War College as a resident student, and twice selected for BG positions.  He was also informed he would not be considered in the future for promotion, but would remain as the Commander until the unit was inactivated in September 1994.  

4.  He states that approximately a year and half ago, in a discussion with the former DCG (Deputy Commanding General) of the 103rd COSCOM, he learned that after the incident of his non-selection, the rules/instructions to the boards for promotion were changed so that for Reserve officers, the first 5 years of duty were not to be considered in promotion to BG or above.  If this was indeed true, then it seems to him that the non-selection for promotion of the July board was/should be deemed to be an injustice to him.

5.  The applicant provides several documents from his Official Military Personnel File (OMPF) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 September 1996, the date he was transferred to the Retired Reserve.  The application submitted in this case is dated 25 October 2006 but was received for processing on 1 November 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 records show that he was appointed in the United States Army Reserve (USAR) as a second lieutenant, effective 17 February 1967, with prior enlisted service.  His date of birth (DOB) is 15 March 1947.  He was promoted to major (MAJ/O-4) effective 15 December 1978. 

4.  On 24 June 1980, the applicant was appointed in the Iowa Army National Guard (IAARNG) in the rank of major.  He was promoted to lieutenant colonel (LTC/O-5) effective 16 December 1982.

5.  On 28 July 1987, the National Guard Bureau notified the applicant that he had completed the required years of service to be eligible for retired pay, on application, at age 60 (20-Year Letter).

6.  The applicant was promoted to colonel (COL/O-6) with an effective date of 16 August 1988.

7.  On 26 March 1989, the applicant was separated from the IAARNG and was transferred to Headquarters, 88th US Army Reserve Command, USAR, Fort Snelling, St. Paul, Minnesota, in the rank of colonel.

8.  On 20 May 1991, the applicant was reassigned from his current assignment, the 205th Infantry Brigade, 6th ID (Infantry Division), St Paul, Minnesota, to the 103rd Corps Support Command, Des Moines, Iowa.  He was voluntarily assigned to a general officer position as the Chief of Staff (C/S), (a BG on MOB [mobilization] position), 103rd COSCOM. 

9.  On 6 July 1993, the applicant assumed command of Headquarters, 6th Infantry Division (Light) (Roundout).

10.  The applicant alleges to have been considered and not selected for promotion to BG by the 1993 General Officer Selection Promotion Board.  

11.  On 3 February 1996, the applicant was ordered to active duty, and was  assigned to the 88th RSC (Regional Support Command), Fort Snelling, Minnesota, with duty as Military Liaison Team Chief, in Hungary, for 179 days.  He was released from active duty on 14 September 1996.  

12.  The applicant was released from the 88th RSC and was transferred to the Retired Reserve effective 15 September 1996, in the rank of colonel, due to unit inactivation, at the age of 51.  He was placed on the Retired List effective 15 March 2007, at the age of 60, in the rank of colonel.

13.  On 22 May 2007, personnel from OCAR (Office of the Chief of Army Reserve), GOMO (General Officer Management Office), informed this agency, by email, that they had no proof that the applicant was considered for promotion to BG during the calendar years 1993, 1994, or 1995.  A roster of officers was provided which shows the names of those colonels who were actually given consideration for promotion in 1993 and 1994.  The applicant’s name did not appear on either of these documents.  The email ended with a statement their files did not go back any farther than 1993.

14.  Army Regulation 135-156 (Personnel Management of General Officers) provides for assignment and permanent promotion of Reserve officers of the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR), not on the active duty list, to and within general officer (GO) grades.  It also sets forth procedures for retaining these officers in and removing them from an active Reserve status.  

15.  10 USC 12771 (Reserve Officers:  Grade on Transfer to Retired Reserve) provides the legal authority for establishing the grade of Reserve officers upon transfer to the Retired Reserve.  It states that unless entitled to a higher grade under another provision of law, a Reserve commissioned officer, other than a commissioned warrant officer, who is transferred to the Retired Reserve, is entitled to be placed on the Retired List in the highest grade in which he/she served satisfactorily, as determined by the Secretary concerned.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was promoted to colonel effective 16 August 1988.  He was voluntarily assigned to a BG/O-7 position as the C/S (a BG on mobilization position), of the 103rd COSCOM, on 20 May 1991.  

2.  The applicant alleges to have been considered and not selected for promotion to BG by the 1993 General Officer Selection Promotion Board; however, he provided no documentary evidence to support his allegation.  

3.  OCAR, GOMO, informed this agency, by email, that there was no proof that the applicant was considered for promotion to BG by the 1993/1994 or 1995 CY boards.

4.  On 15 September 1996, the applicant was transferred to the Retired Reserve due to unit inactivation, at the age of 51.  He was placed on the Retired List at the age of 60, on 15 March 2007.  The applicant was transferred to the Retired Reserve and placed on the Retired List in the rank of colonel.

5.  The applicant's contentions were considered; however, there is no evidence to support that an injustice occurred. 

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 September 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 September 1999.  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

__JP____  __LDS___  __JH___  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
AR20060015308
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070726
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19960915
DISCHARGE AUTHORITY
AR140-10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131
2.

3.

4.

5.

6.