RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 July 2007
	DOCKET NUMBER:  AR20060017598 


	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

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Rose M. Lys

Member

Mr. James 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 that his promotion eligibility date (PED) for selection to Lieutenant Colonel (LTC) be changed to 15 April 1991.

2.  The applicant states, in effect, that he had a de facto status as a Major (MAJ) so as to debunk the forged declination of promotion to the grade of MAJ.  In other words, he can prove that from April 1983 he wore the rank of MAJ and received MAJ pay.  This should bolster the claim the declination of promotion was indeed a forgery.   

3.  The applicant further stated "Although there is no actual promotion announcement to MAJ in 1983, I can now infer it was issued by payment and rank.  Incidentally, if my claim is upheld, I waive all back pay claims and seek only a certificate of promotion, and perhaps a new DD Form 214.  No promotion orders.  No pay.  Just the title." (emphasis in the original)

4.  The applicant provides a letter from the United States Army Reserve Personnel Center (ARPERCEN), dated 8 October 1990; a letter from ARPERCEN, dated 31 July 1996;  a Cold War Certificate of Recognition; a United States Army Logistics Management transcript, dated 10 September 2002; a DA Form 1059 (Service School Academic Evaluation Report), Associate Logistics Executive Development non-resident course from 29 October 1990 to 28 February 1995; a letter from Gideon Epstein (Forensic Examiner of Questioned Documents), dated 16 May 2005; a DA Form 2349 (Military Pay Voucher), with the date paid, 5 August 1988; a mostly illegible pay voucher dated 17 June 1988; and a completely illegible document.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 24 April 1999, the date he was transferred to the Retired Reserve.  The application submitted in this case is dated 9 December 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 24 April 1939.  After having had prior commissioned service, he was appointed in the Connecticut Army National Guard (CTARNG) as a Captain (CPT) effective 13 December 1977.

4.  By memorandum, dated 13 June 1983, the applicant was notified by the United States Reserve Components Personnel and Administration Center that he was considered and selected for promotion to MAJ by the 1983 Reserve Components Selection Board (RCSB).  The memorandum indicated the effective date of promotion (with a date of rank of 8 April 1983) would be the later of 13 April 1983; the date Federal Recognition was extended in the higher grade; or the date following the date Federal Recognition was terminated in his current Reserve grade.

5.  By second endorsement, dated 7 September 1983, the applicant was notified by The Adjutant General, Connecticut, that he would have to be in a Table of Organization and Equipment (TOE)/Table of Distribution and Allowances (TDA) assignment in order to accept promotion in higher grade.  On or about 5 October 1983, the applicant signed the endorsement indicating he declined promotion with continued assignment in the Army National Guard of the United States in his present grade.

6.  On 5 October 1983, the applicant’s commander forwarded the applicant’s declination of promotion to MAJ to The Adjutant General, Connecticut.  The commander stated that the applicant declined promotion to MAJ with continued assignment to the Army National Guard of the United States in his present grade as no vacancy presently existed in the organization for him to accept promotion in the higher grade.  In an endorsement dated 30 January 1984, the declination was approved for a period of 3 years, from 8 April 1983 to 7 April 1986.

7.  On 3 December 1983, the applicant signed an annual Officer Evaluation Report (OER) covering the period 5 October 1982 through 4 October 1983.  The report shows during the rating period his rank was CPT.  He authenticated the administrative data portion, which included his grade and date of rank, with his signature.  

8.  On 10 October 1984, the applicant signed an annual OER covering the period 5 October 1983 through 4 October 1984.  The report shows during the rating period his rank was CPT.  He authenticated the administrative data portion, which included his grade and date of rank, with his signature.

9.  The applicant signed a change of duty OER covering the period 5 October 1984 through 10 August 1985.  The report shows during the rating period his rank was CPT.  He authenticated the administrative data portion, which included his grade and date of rank, with his signature.

10.  State of Connecticut, Military Department, Office of the Adjutant General orders 120-4, dated 11 October 1985, show that the applicant was separated from the ARNG effective 30 September 1985 and transferred to a U. S. Army Reserve Troop Program Unit (TPU).  These orders show his rank as CPT.

11.  On 7 October 1986, the applicant signed an annual OER covering the period 1 October 1985 through 30 September 1986.  The report shows during the rating period his rank was CPT.  He authenticated the administrative data portion, which included his grade and date of rank, with his signature.

12.  By Headquarters, First United States Army memorandum, dated 12 June 1987, the applicant was notified that he was promoted to the rank of MAJ effective 1 October 1985, with time in grade computed from 13 April 1983 (apparently not realizing the applicant had declined promotion in 1983).

13.  By United States Total Army Personnel Command, St. Louis (PERSCOM-STL) memorandum, dated 11 October 1989, the applicant was notified that he was not recommended for promotion to LTC by the 1989 RCSB.

14.  By PERSCOM-STL memorandum, dated “8 Oct 1990,” the applicant was notified that he was considered and selected for promotion to LTC by the 1990 RCSB.  He had apparently been erroneously considered.

15.  On 15 May 1992, the Chief, Office of Promotions, Reserve Components, PERSCOM-STL, advised the applicant that Headquarters, First United States Army originally gave him his original date of rank of 13 April 1983 and as a result of this error he was erroneously considered for promotion to LTC by the 1989 and 1990 selection boards.  It was also stated that, based on the applicant’s declination [of promotion to MAJ], his date of rank was advanced to his actual promotion date of 1 October 1985.  Therefore, his name was removed from the official results of the 1989 and 1990 boards and his selection by the 1990 board was no longer valid.  He was further advised that, based on 7 years time in grade, his corrected PED to LTC was 30 September 1992.  However, as a result of his non-selection by the 1991 annual board, his PED was advanced to          30 September 1993.  He was advised that the reason he was not selected by the 1991 board was not known, as selection boards do not record their reason for selection or non-selection.

16.  Based upon two separate applications to the ABCMR, the applicant was granted promotion reconsideration to LTC under the 1992 and 1994 criteria and not selected.  He apparently was also considered for promotion under the 1993 criteria but also was not selected.

17.  By PERSCOM-STL memorandum, dated 15 December 1995, the applicant was notified that he was considered and not selected for promotion to LTC.  The board criteria was not listed.

18.  By PERSCOM-STL memorandum, dated 2 August 1996, the applicant was notified that he was not selected for promotion to LTC for a second time.  The memorandum further stated "As a result of this second nonselection, you must be separated from the Army Reserve."

19.  The applicant’s first application to the ABCMR for promotion reconsideration was boarded on 29 January 1997.

20.  On 24 April 1999, the applicant was retired and placed on the retired list.

21.  The applicant’s second application to the ABCMR for promotion reconsideration was boarded on 24 February 2004.

22.  The applicant provided a letter from Gideon Epstein, dated 16 May 2005.  The author stated, in effect, at that time he had ten documents bearing the 
applicant's signature and a copy of the memorandum "Eligibility for Promotion as a Reserve Commissioned Officer on Active Duty" dated 13 June 1983.  As a 
result of the examination he conducted he concluded that the signature on the disputed document was [not] consistent with the known signatures that he had and was in all probability not made by the applicant.

23.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that ARNG officers will be considered for promotion by mandatory promotion boards.  The regulation also specifies that a voluntary promotion delay may be granted for up to 3 years. It also specifies that if an officer accepts a promotion prior to the expiration of a voluntary delay of promotion, the effective date will be the date of acceptance and extension of Federal Recognition.  It is further specified that if an officer has a maximum time in grade date prior to the acceptance date during a delay, he/she is not entitled to their original maximum time in grade date.

24.  Army Regulation 135-155 also specifies that at the end of an approved period of delay, an ARNG officer must choose to be promoted in the higher grade if a higher-grade position is made available.  If there is no higher-grade position, and the officer wants to be promoted, his/her Federal recognition will be withdrawn and they will be transferred to the Individual Ready Reserve and be promoted.  If they choose to decline the promotion they will be removed from the promotion list.

25.  Army Regulation 135-155 specifies that a promoted officer who occupied the higher grade and actually discharged the functions of that grade in good faith from the date of promotion to the date notified of the invalid promotion will be deemed to have served in a de facto status.  

26.  Army Regulation 135-155, the version in effect at the time, further specified that an Army National Guard of the United States could not be transferred and promoted before the end of the authorized declination period.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he had a de facto status as a MAJ from June 1983.   Evidence of record shows the applicant was recommended for promotion to MAJ on 13 June 1983; however, on 5 October 1983 he signed a declination   of promotion to MAJ.  His commander noted that there were no unit vacancies    in the grade MAJ.  The applicant signed four OERs (with ending periods of          4 October 1983, 4 October 1984, 10 August 1985, and 30 September 1986) during the period of the declination that showed his rank as CPT, which tends to contradict his contention that he had a de facto status as a MAJ from June 1983. In any case, even if he had been deemed to have served as a MAJ in a de facto status such a status would be prima facie evidence that the promotion was invalid.

2.  The applicant provided a letter that disputes his signature on the declination of promotion.  However, evidence of record shows that the declination of promotion was verified and approved by his chain of command.  That declination was filed in his records for about 20 years.  There is no evidence to show he disputed his signature on that declination for promotion earlier or that he questioned at the time why he was not promoted to MAJ.  Also, again, he signed four OERs during the declination period that listed his rank as CPT, which tends to contradict his contention that the declination of promotion was invalid and/or a forgery.  Therefore, this argument is without merit.  

3.  The applicant was erroneously promoted to MAJ by Headquarters, First Army and given his original date of rank of 13 April 1983, which made him eligible for promotion consideration to LTC in 1989 and 1990.  By regulation, he should have been given his transfer date as his date of rank.  He was then considered for promotion to LTC by the 1989 RCSB and considered and selected for promotion to LTC by the 1990 RCSB due his being given the erroneous date of rank.  Prior to his being promoted his name was removed from results of those boards.  He was then subsequently considered and not selected for promotion to LTC by later RCSBs.  He was appropriately retired in the grade of MAJ.

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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 April 1999; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
23 April 2002.  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

___JI ___  ___RL___  __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.




_____ Mr. John Infante ___
          CHAIRPERSON



INDEX

CASE ID
AR20060017598
SUFFIX

RECON

DATE BOARDED
24 JULY 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
131.0400.0000
2.

3.

4.

5.

6.