RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 July 2007
      DOCKET NUMBER:  AR20060016328


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

      The following members, a quorum, were present:

|     |Mr. John P. Infante               |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. James R. Hastie               |     |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 date of rank (DOR) and
effective date of promotion to captain (CPT) be adjusted to 15 April 1985
(sic) and that a special selection board (SSB) be convened to consider his
records for promotion to major (MAJ).  He further requests, in a second
application, that his mandatory removal date (MRD) be changed from 12
December 2006 to 11 December 2013 (he mentions 2015 in his rebuttal to an
advisory opinion) and that he be granted an age waiver.  In his second
application, he also requests payment for the SUTAs (split unit training
assemblies) he performed in 1985/1986.

2.  The applicant states he submitted his CPT promotion packet in a timely
manner.  He immediately addressed the deficiencies as noted in a memorandum
dated 1 August 1984 and corrected those deficiencies.  He was selected for
promotion on 8 November 1985.

3.  The applicant states he constantly pursued this point with his command.
 They had a critical need for CPTs but he did not get recognized until he
again submitted a promotion packet in 2000.  He was never boarded.  When he
returned in April 1998, he was not recognized as a CPT and was forced to
redo his first lieutenant (1LT) time and grade all over again.  He states
he discovered the error on 11 December 1998.

4.  The applicant states he was never transferred into the 3d Battalion,
360th Regiment, 91st Training Division.  He only SUTAd with it.  He wants
credit and payment for these SUTAs.  When the 3d Battalion, 360th Regiment
deactivated, he was illegally carried on the 91st Division’s books when in
fact he was on the 1/143d FA’s books.  He never drilled with the 91st
Training Division from 1986 through 1998.  He could not drill with anyone
from 20 March 1992 through        14 April 1998 because he was on medical
leave.  He was in a car accident and had many hospitalizations to repair
his broken leg.

5.  The applicant provides a State of California, Office of the Adjutant
General letter, dated 15 October 1984; a promotion letter, dated 15 April
1985; a DA Form 1059 (Service School Academic Evaluation Report), for the
Signal Officer Advanced Course – Reserve Component, for the period ending
26 October 2001; and a DA Form 1059 for the period ending 23 January 2004.

6.  The applicant also provides a U. S. Army Human Resources Command – St.
Louis (USAHRC – STL) memorandum, dated 1 July 2006; his National Guard
Bureau (NGB) Form 22 (Report of Separation and Record of Service); a letter
dated 22 November 1986; and a Staff Coordination/Approval/Routing Sheet,
dated 13 April 2007.
7.  The applicant also provides a copy of his official photograph; a copy
of his California driver’s license, military identification card, and unit
business card; copies of documents from his personnel records including
officer evaluation reports, two certificates of completion, and a letter of
commendation; a Chronological Statement of Retirement Points, dated 14
December 2001; an annotated 319th Signal Battalion Leadership roster; a
Unit Manning Report dated 7 November 2004; a five-page paper entitled “The
Crisis in Maintenance”; a copy of “0319th Sig Bn OPORD 01-02 (APR FTX)”; a
diagram, “Event: NOV 03, Network Diagram”; and an email, dated 28 September
2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
(regarding adjustment of his CPT DOR and effective date) which occurred on
  or about 25 June 1986, the day following his date of discharge from the
Army National Guard (ARNG).  The application submitted in this case is
dated           20 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 was born on 9 August 1955.  He was appointed a second
lieutenant in the U. S. Army Reserve (USAR) on 10 November 1978, at age 23.
 He was transferred to the ARNG on 1 September 1979.  He was promoted to
1LT on 9 November 1981.

4.  In a 15 October 1984 letter from the State of California, Office of the
Adjutant General to the Commander, 1/143d FA, the unit was informed that a
Reserve CPT promotion board would convene on 8 January 1985 and that
documents for officers listed on an attached enclosure had not been
received.  The enclosure is not available.  The applicant’s name was
apparently listed on it as missing some documents.

5.  By letter dated 15 April 1985, the U. S. Army Reserve Components
Personnel and Administration Center informed the Chief, NGB that the
applicant had been selected for promotion to CPT by the promotion selection
board that adjourned on 8 February 1985.  His effective date of promotion
would be the later of the following dates:

      a.  8 November 1985
      b.  the date Federal Recognition was extended in the higher grade; or
      c.  the date following the date Federal Recognition was terminated in
his current Reserve grade.

6.  The 15 April 1985 letter went on to state that if the applicant
accepted promotion and Federal Recognition was not extended in the next
higher grade he would be transferred to the USAR on the day following the
date of termination of Federal Recognition in his current grade.

7.  On 24 June 1986, the applicant was discharged from the ARNG.  His NGB
Form 22 and his separation orders indicate he was transferred to a USAR
troop program unit (TPU), Company D, 3d Battalion, 360th Regiment, 1st
Brigade, 91st Training Division.  His NGB Form 22 shows his rank as 1LT
with a date of rank of 9 November 1981.  His NGB Form 22 shows he was not
available to sign the form.  His separation orders show his rank as 1LT.

8.  In a letter dated 22 November 1986, the applicant (who listed his rank
as “LT”), submitted a request for payment for SUTA drills to the Personnel
and Administration Center, Headquarters and Headquarters Battery, 1/143d
FA.  He stated he was missing pay checks for December 1985 and January,
March, April, May, and June 1986.  He stated he had postponed contacting
the Inspector General to allow his command one last effort to resolve the
matter internally.

9.  NGB Special Orders Number 48 AR, dated 12 March 1990, withdrew Federal
Recognition from the applicant, as a 1LT, effective 24 June 1986 due to his
transfer to the USAR.

10.  The applicant was apparently transferred to the Individual Ready
Reserve (IRR) on an unknown date.  Effective 14 May 1998, he was
transferred from the IRR to the 319th Signal Battalion, USAR in the rank of
1LT.  However, his Chronological Statement of Retirement Points shows that
he earned only          15 membership  points after his discharge from the
ARNG (except for 1 inactive duty training point during retirement year
ending 9 November 1989), indicating he may have been listed as being in the
IRR from 24 June 1986.

11.  By USAHRC - STL memorandum dated 31 May 2001, the applicant was
informed he was promoted to CPT effective 18 May 2001.

12.  By USAHRC –STL memorandum dated 1 July 2006, the applicant was
informed he would complete his maximum years of service on 1 December 2006.

13.  The applicant was discharged from the USAR effective 31 December 2006.

14.  In the processing of this case, an advisory opinion was obtained from
the Chief, Special Actions Section, Office of Promotions, Reserve
Components, USAHRC – STL.  The advisory opinion noted that the applicant
was in the ARNG when he was selected for promotion to CPT in 1985.  The
advisory opinion noted they could not speculate why he was not promoted
while in the ARNG.  The advisory opinion noted the applicant may have been
in the IRR after he separated from the ARNG.  However, to be promoted in
the IRR during the time in question he would have to have had a current
physical fitness test, security clearance, and have met the height/weight
standards.  There was no way for the Office of Promotions, Reserve
Components to prove or disprove his promotion eligibility nearly 20 years
later.

15.  The advisory opinion also noted that the applicant was considered and
selected (again) for promotion to captain by the promotion board that
convened on 13 November 2000.  Since he was in a unit, he was given 18 May
2001 as his date of rank as that was the date he was placed in the higher
position.  It was unclear why he was considered again.  The advisory
opinion recommended the applicant’s date of rank be changed to 8 November
1985 with an effective date of 18 May 2001 as that was the date he was
assigned to the higher graded position. That office also noted that the
applicant stated he discovered the error on         11 December 1998 and
opined that if he had reported it in a timely manner more documents could
have been available that would help prove his case.

16.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He stated that both USAHRC – STL and himself were “in
complete agreement that his military records are a mess, that the paper-
trail is almost  non-existent, that the events described occurred almost
twenty years ago, that critical documents are missing, were never processed
or else improperly processed (backdated without any notation or
documentation and that finally, the Army (Command and HRC) did not follow
its own regulations governing personnel procedures and promotions.

17.  The applicant stated that he was promoted to CPT while a drilling
member of the California Army National Guard (CAARNG) and was granted
Federal Recognition as such on 8 November 1985.  He resigned his commission
to obtain a break in service so as to stop his MRD clock from running out.
Without his knowledge, he was improperly “ghosted” on the 91st Training
Division’s rolls for 12 years.  When he did return [to] service, not only
was his promotion to CPT not recognized, but he now had a deficit of 12
years on his MRD clock.

18.  The applicant stated that he was promoted to CPT a second time with a
new DOR of 18 May 2001, which harmed him as his 8 November 1985 CPT DOR was
erased and now bars his making MAJ.  He was recently removed from service
based upon a faulty MRD of 12 December 2006 despite the fact that he had
resigned his commission and his MRD clock stopped for the 12 years he was
not drilling.

19.  The applicant stated that USAHRC – STL posits his effective DOR should
be 18 May 2001.  He believes his effective DOR should be 14 May 1998
because he was assigned to the 319th Signal Battalion as a Federally
Recognized CPT on 14 May 1998.  All four company commander positions as
well as the principle staff positions in the battalion were CPT positions.
All incumbents, however, were 1LTs.  Had his rank been properly recognized,
he could have had his choice of virtually any CPT assignment he desired at
the battalion.

20.  The applicant stated he was troubled by USAHRC – STL’s analysis of his
DOR issue as it failed to address his being forced to re-qualify as a 1LT
despite possessing evidence that he had already served his three-year
statutory requirement as a 1LT from 1981 to 1984.  He stated USAHRC – STL
[presumed] that his first exposure to [a CPT position] occurred on 14 May
2001, the date he was proclaimed a CPT for the second time.  There is no
regulatory provision to force him to re-qualify for three years as a 1LT –
the only choice was to promote him or remove him.

21.  The applicant stated he was penalized [by being made to return to the
Army as a 1LT, not a CPT] because the Army could not substantiate its
paperwork, irrespective of the promotion documentation he presented.  By
being demoted to 1LT, he was being asked to compete for command slots with
junior 1LTs much younger than he, and he was being asked to subordinate
himself to a neophyte company commander who was many years his junior and
who lacked his Signal [Corps] and leadership experience.

22.  The applicant stated that, by losing his 8 November 1985 DOR to CPT,
he lost his chance for promotion to MAJ.  With a CPT DOR of 8 November
1985, he could put in his packet for MAJ for the 2005 board with a
reasonable expectation of being promoted.  With a CPT DOR of 18 May 2001,
the soonest he would be able to put in his promotion packet would be 18 May
2007, after he was already out of the Army with an uncorrected MRD date of
12 December 2006.

23.  The applicant stated he served in a CPT position with the 1/143d FA
from 1984 to 1985.  In 1999, he was listed on each of four OPORD
(operational orders) as the “Officer Reviewer” for their EAC (emergency
action center) Battalion Signal OPORD, a core function of their Signal
Battalion S-3 (Operations) position, which is a MAJ position.  In 1999, he
volunteered for the Battalion’s vacant EEO (equal employment office)
Officer position, a CPT position.  Just prior to his promotion to CPT in
2001, he was appointed the battalion maintenance officer, a CPT position.

24.  The applicant states he concurs with USAHRC – STL’s assessment that
his service record’s paper trail is an absolute mess.  One document shows
he transferred from the CAARNG to the USAR on 24 June 1986, another
document shows a date of 12 March 1990, yet neither of those dates is
historically accurate.  The documents appear to be re-constructions of
missing documents based on assumptions of fact(s) rather than on
uncontestable fact(s).  Adding to the confusion, the dates of those two
documents conflict with each other.

25.  The applicant states that around November 1986 he resigned his Army
commission from the USAR.  He was advised to tender a letter of resignation
as opposed to simply transferring into the IRR because his resignation
would count as a “break in service” and would toll the MRD statute.  He
proceeded with the letter of resignation and left the service.  He is
willing to take a polygraph test to confirm that he submitted the letter of
resignation.  He has no idea how his name came to be included on the
historic two-day 1995 IRR call-up.  He was instructed to take his physical
at Letterman Army Hospital, the last Army officer to ever be processed at
Letterman Hospital.  His answering the 1995 call up and passing his
physical led to his receiving a USAHRC – STL offer in January 1998 to join
the 319th Signal Battalion as a Federally Recognized CPT and he re-
activated his Army TPU status on 14 May 1998.

26.  The applicant stated that he resigned his commission, went out of the
service for a lengthy period of time, and was invited back in.  His letter
of resignation constituted a “break in service” and stopped his MRD clock
from running.  If anything, the lack of supporting documentation as to his
IRR service enhances his claim of having tendered his resignation because
such an action on his part would have created a gap between his pre-
resignation service and his post-resignation [service] as now presently
exists because he would have been totally out of the Army because that is
what a letter of resignation affords – a total break in service.

27.  The applicant stated that his request to submit a promotion packet for
MAJ based upon his corrected CPT DOR is a logical extension of USAHRC –
STL’s opinion that his DOR for CPT was 8 November 1985.  If 14 May 1998 is
determined to be his correct effective date for promotion to CPT, then his
eligibility for MAJ would have been 14 May 2005.

28.  National Guard Regulation 600-100 prescribes policies and procedures
governing, in part, the appointment, Federal Recognition, and separation of
commissioned officers of the ARNG.  Chapter 8 states that the promotion of
officers in the ARNG is a function of the State.  A commissioned officer
promoted by State authorities has a State status in the higher grade under
which to function.  However, to be extended Federal Recognition in the
higher grade, the officer must have satisfied the requirements prescribed
in this chapter.

29.  National Guard Regulation 600-100, paragraph 8-6 states wearing of
insignia of the higher grade is not authorized until Federal Recognition
has been extended by the Chief, NGB.  Paragraph 8-15 states an ARNG
commissioned officer, not on active duty, who is selected for promotion as
a Reserve commissioned officer of the Army resulting from mandatory
consideration may be extended Federal Recognition in the higher grade
subject to several conditions, including that the officer has reached his
or her promotion eligibility date and that the officer is promoted in a
State status to fill an appropriate position vacancy in the higher grade.

30.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Officers other than General Officers), paragraph 4-10 of the
version in effect at the time (dated 1 November 1983), stated an officer
who was recommended for promotion to the next higher grade must have (1)
been in an active Reserve status; (2) completed the service requirements
listed in table 2-1; (3) been medically qualified; (4) undergone a
favorable security screening; and (5) met the standards of the Army Weight
Control Program in Army Regulation 600-9.  Paragraph 4-19 stated unit
members would be promoted effective the later of the date mandatory service
requirements and promotion eligibility requirements were met or the date
assigned to a position vacancy in the higher grade.

31.  Army Regulation 135-155, dated 1 November 1983, was also in effect at
the time the applicant was assigned to the 319th Signal Battalion on 14 May
1998.  That version was not superseded until 24 October 2001.

32.  Army Regulation 135-100 (Appointment of Commissioned and Warrant
Officers of the Army), dated 1 September 1994, Table 1-1 states the maximum
age limitation for appointment as a 1LT is 33 years.  The maximum age
limitation for appointment as a CPT is 39 years.  The maximum age
limitations may be increased for former officers by an amount not more than
the length of previous service in grade in which appointment is authorized.
 Paragraph 1-6g states that the medical fitness standards in chapter 2
(enlistment and appointment) of Army Regulation 40-501 must be met.

33.  Army Regulation 140-10 covers policy and procedures for assigning,
removing and transferring USAR Soldiers.  In pertinent part, it states CPTs
will be removed from an active status when they complete 28 years of
commissioned service if under age 25 at initial appointment.

34.  The doctrine of laches is defined by Black’s Law Dictionary, sixth
edition, as the neglect to assert a right or claim which, taken together
with lapse of time and other circumstances causing prejudice to the adverse
party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant made several contentions in his application and in his
rebuttal to the advisory opinion.

2.  The applicant contended he was selected for promotion on 8 November
1985 and granted Federal Recognition as such on 8 November 1985.

3.  However, the available evidence of record, and the evidence the
applicant provided, indicated that he was never promoted to CPT.

4.  By letter dated 15 April 1985, the U. S. Army Reserve Components
Personnel and Administration Center informed the Chief, NGB that the
applicant had been selected for promotion to CPT and that his effective
date of promotion would be the later of the following dates:

      a.  8 November 1985
      b.  the date Federal Recognition was extended in the higher grade; or
      c.  the date following the date Federal Recognition was terminated in
his current Reserve grade.

5.  The 15 April 1985 letter went on to state that if the applicant
accepted promotion and Federal Recognition was not extended in the next
higher grade he would be transferred to the USAR on the day following the
date of termination of Federal Recognition in his current grade.

6.  Despite the applicant’s contentions that he served in a CPT position
with the 1/143d FA from 1984 to 1985, his ARNG separation orders and his
NGB Form 22 show he was a 1LT when he was discharged from the ARNG on 24
June 1986.  The March 1990 orders withdrawing his Federal Recognition (with
an effective date of 24 June 1986) show he was a 1LT.

7.  Although the applicant did not sign the NGB Form 22, a reasonably
prudent commissioned officer would have requested this document if he never
received it.  Since, in his rebuttal to the advisory opinion, the applicant
stated he resigned his Army commission from the USAR on or about November
1986, it would have been reasonable for him to start requesting that NGB
Form 22 no later than November 1986 if not earlier.  He would have
discovered any “error” in his rank when he received the NGB Form 22.

8.  In the applicant’s own 22 November 1986 letter seeking payment for his
SUTAs, at which time he was on the USAR’s books, he listed his rank as
“LT”.  This letter appears to be a clear indicator that the applicant
himself did not believe he had been promoted to CPT while in the ARNG or
that he met either the administrative eligibility criteria or the
assignment to a position vacancy in the higher grade requirement (since his
NGB Form 22 shows he was assigned to a TPU) for promotion to CPT upon his
transfer to the USAR.

9.  As USAHRC – STL noted in its advisory opinion, there is also no way for
this Board to prove or disprove his promotion eligibility nearly 20 years
later.  Notwithstanding USAHRC – STL’s recommendation that the applicant’s
records be corrected to show his CPT DOR as 8 November 1985, an arbitrary
ruling in his favor, without knowing what his records would have shown,
would cause prejudice to the Government.  Had he applied to the Board in
1986 (or even brought it to the Army’s attention at the time that he had
been promoted to CPT in November 1985), an equitable decision could
possibly have been made in his case.  However, since it is now 20 years
after he contends he was promoted to CPT, and as the available evidence
indicates he did not believe at the time that he had been promoted to CPT,
the doctrine of laches is invoked in his case regarding this issue.

10.  The applicant contended he discovered the error (of not being
recognized as a CPT) on 11 December 1998.  However, again, as a reasonably
prudent commissioned officer he should have requested his NGB Form 22 no
later than November 1986.  He would have discovered any “error” in his rank
when he received the NGB Form 22.

11.  The applicant contended that he was listed on each of four OPORDs as
the “Officer Reviewer” for their EAC Battalion Signal OPORD, a core
function of their Signal Battalion S-3 position, which is a MAJ position,
in 1999; that he volunteered for the Battalion’s vacant EEO Officer
position, a CPT position, in 1999; and that just prior to his promotion to
CPT in 2001, he was appointed the battalion maintenance officer, a CPT
position.  However, he provided no evidence to show he was assigned to a
CPT position any earlier than 18 May 2001.  The Unit Manning Report he did
provide was dated 7 November 2004.

12.  Since there is no evidence to show the applicant was assigned to a CPT
position any earlier than 18 May 2001, there is no basis for granting his
request that a SSB be convened to consider his records for promotion to
MAJ.

13.  The applicant contended that he concurred with USAHRC – STL’s
assessment that his service record’s paper trail is an absolute mess.  He
contended that the dates listed in two documents (i.e., his NGB Form 22
and/or his ARNG separation orders and the NGB orders withdrawing his
Federal Recognition) conflict with each other.  However, the dates in those
documents do not conflict with each other.  His NGB Form 22 and his ARNG
separation orders show he was discharged from the ARNG on 24 June 1986.
His Federal Recognition withdrawal orders, although published in March
1990, show the effective date of withdrawal as 24 June 1986.  The dates in
those documents agree with each other.

14.  The applicant contended in his rebuttal to the advisory opinion that
he was never transferred into the 3d Battalion, 360th Regiment, 91st
Training Division and that when the Battalion deactivated, he was illegally
carried on the 91st Training Division’s books when in fact he was on the
1/143d FA’s books.  However, the 1/143d FA was his ARNG unit.  He was off
their books upon his discharge from the ARNG on 24 June 1986.  His NGB Form
22 shows he was transferred to the 91st Training Division after his
discharge from the ARNG.  It cannot be determined what he meant by this
contention.  His 22 November 1986 letter to the 1/143d FA only requested
pay for drill dates through June 1986, so it appears he acknowledged that
he did not drill with the 1/143d FA after June 1986.  Therefore, there is
insufficient evidence to show that his transfer to the 91st Training
Division was erroneous, whether he ever drilled with that unit or not.

15.  In addition, again, had he requested a copy of his NGB Form 22 in a
timely manner he could have discovered the “erroneous” transfer to the 91st
Training Division and corrected the error in a timely manner.  Again, with
the passage of 20 years it cannot be determined that his transfer to the
91st Training Division was an error and it is presumed that it was not an
error.

16.  The applicant requested credit and payment for the SUTAs.  He brought
this issue up in November 1986.  Presumably, if his unit had not paid him
he would have followed through with his threat to contact the Inspector
General.  He provides no evidence to show he was not given credit for or
paid for those SUTAs.  Again, an arbitrary ruling in his favor, without
evidence of record confirming that he was not given credit for or paid for
those SUTAs, would cause prejudice to the Government.  Again, had he
applied to the Board in 1986 or soon thereafter, an equitable decision
could possibly have been made in his case.  However, since it is now 20
years after he contends he was not given credit for or pay for those SUTAs,
the doctrine of laches is invoked in his case regarding this issue.

17.  The applicant vehemently contended that he resigned his commission to
obtain a total break in service so as to stop his MRD clock from running
out.  He stated that around November 1986 he resigned his Army commission
from the USAR.  He contended that he left the service and was willing to
take a polygraph test to confirm that he submitted the letter of
resignation.

18.  Nevertheless, when the Army (evidently erroneously, since he contends
he had resigned his commission) included his name on the historic two-day
1995 IRR call-up, it appears the applicant never informed the Army that it
was a mistake, that he had resigned his commission in 1986.  He did not
contend that he tried to tell the Army he had resigned his commission but
they would not listen.  Instead, it appears the applicant without duress
took his physical as instructed (which would have been given under the
retention standards of chapter 3 of Army Regulation 40-501 and not under
the appointment standards of chapter 2) and then accepted assignment to a
TPU on 14 May 1998 as though he had been in the IRR all along.

19.  The applicant, who vehemently contended he obtained a total break in
service when he resigned his commission in November 1986, completely
bypassed the officer appointment eligibility requirements of Army
Regulation  135-100.  Since he contended he had obtained a total break in
service, he would have needed to be reappointed as a commissioned officer.
In accordance with those eligibility requirements had the applicant
requested appointment as a 1LT he could not have been older than 38
(maximum age of 33 plus 5 years prior service as a 1LT).  If he had
requested appointment as a CPT (and had there been sufficient evidence to
show he was promoted to CPT in November 1985), he could not have been older
than 40 (maximum age of 39 plus 1 year prior service as a CPT).  The
applicant was 42 years old in May 1998.

20.  It appears the applicant used the Army’s error that showed he had
continuous USAR service to his benefit in connection with his 14 May 1998
acceptance into a TPU, which resulted in an MRD of December 2006.  Now he
wishes to rectify that error in order to again benefit him by correcting
his MRD to 2013 or 2015.  It would not be equitable to reward the applicant
for his earlier failure to be forthcoming regarding his military status.
21.  Based on all of the above and especially in light of the circumstances
of the applicant’s assignment to a TPU in May 1998, there is insufficient
evidence that would warrant granting any of the relief requested.

22.  In regard to adjusting his DOR and effective date of promotion to CPT
to      15 April 1985 (sic), records show the applicant should have
discovered the alleged error or injustice now under consideration on or
about 25 June 1986; therefore, the time for the applicant to file a request
for correction of any error or injustice expired on 24 June 1989.  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

__jpi___  __rml___  __jrh___  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, in regard to the applicant’s request to adjust his date of
rank and effective date of promotion to captain, 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.




                            __John P. Infante_____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060016328                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070724                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Shatzer                             |
|ISSUES         1.       |131.05                                  |
|2.                      |131.11                                  |
|3.                      |128.00                                  |
|4.                      |102.00                                  |
|5.                      |                                        |
|6.                      |                                        |


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[pic]