RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 21 June 2007
DOCKET NUMBER: AR20070000174
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 L. Engle
Analyst
The following members, a quorum, were present:
Ms. Sherri V. Ward
Chairperson
Mr. Richard T. Dunbar
Member
Mr. David W. Tucker
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, correction of his military records to show that he was promoted to the rank of captain after 1 year of service.
2. The applicant states, in effect, that the error was unintentional. He further states that he and other dental officers were justifiably waiting for promotion orders. He contends that dental officers of the Army, Air Force and Navy were all promoted to the next grade when they had completed 1 year of service.
3. The applicant provides a copy of a newspaper obituary that discusses, in part, the Air Force service of another dentist who was promoted to the rank of major after 2 years in service.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 30 June 1953, the date of his release from active duty. The application submitted in this case was received on 29 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 applicants failure to timely file.
3. On 18 September 1950, the applicant was appointed a second lieutenant in the United States Army Reserve with an immediate call to active duty.
4. On 7 June 1951, the applicant was appointed in the grade of first lieutenant in the Officers Reserve Corps, Dental Corps, United States Army Reserve, for a period of 5 years. His appointment letter required him to execute his oath of office within a reasonable period of time and to report any change of his home address to the custodian of his unit personnel records. This letter makes no mention of his receiving another promotion after a year in service.
5. On 9 April 1953, the applicant requested the assistance of then Senator Lyndon Johnson, to determine the reason that he and five other dental officers at Fort Hood, Texas, had not received their promotion to the rank of captain, which was 3 months overdue. The applicant stated in this letter that he and the other dental officers were promised by the colonel who had recruited them into the United States Army that they would be promoted to captain after serving
12 months in the rank of first lieutenant. The applicant indicated that his chain of command had not provided an answer as to why they were not promoted; and that all he wanted was an honest, reasonable answer.
6. On 27 April 1953, the Army Liaison Officer provided Senator Johnson an explanation regarding the applicants promotion status to captain. The liaison officer stated that when the applicant was ordered to active duty on
18 September 1950, first lieutenants, Dental Corps, were considered for temporary promotion to the grade of captain after completion of 12 months active duty commissioned service. This service requirement was increased over a period of time from 12 months to 20 months service. Due to an over strength of captains, Dental Corps, promotions were discontinued on 31 December 1952. Promotions would resume at such a time as vacancies in the Dental Corps and budgetary considerations permitted. The liaison officer also stated that there was no record in the Office of the Adjutant General indicating that the applicant had been promised a promotion to captain after 12 months of service. It was easy to see that he was a victim of circumstances. The changing promotion criteria kept prolonging the required period of commissioned active duty service, thus making it more difficult to be eligible for promotion.
7. On 30 June 1953, the applicant was released from active duty. He attained the rank of first lieutenant, and had completed 2 years, 9 months and 13 days of creditable active duty during this period of service. He had also completed
3 years, 2 months and 25 days of prior service.
8. On 19 March 1954, the applicant was honorably discharged from the United States Army Reserve by reason of being found not available to serve a 1-year mobilization.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that the applicant was most likely encouraged to enter active duty with the promise of a promotion to captain after 1 year of service in the rank of first lieutenant. However, there is no evidence that such a promise was made a part of any contract, or that it was in anyway enforceable.
2. The evidence shows that the time in service requirement criteria for promotion to captain had increased from 12 months to 20 months. Given that the applicant was promoted to first lieutenant effective 7 June 1951, he would have become eligible for captain at some point between 12 and 20 months later. The applicants letter of 9 April 1953 indicates that he thought his promotion was 3 months over due, providing an expected promotion date of 7 January 1953. However, the evidence of record shows that promotions were discontinued as of 31 December 1952 due to an over strength of Dental Corps captains.
3. There is no available evidence to show that promotions for Dental Corps first lieutenants were resumed prior to the applicants release from active duty and subsequent discharge.
4. In the absence of evidence to the contrary, it is presumed that the promotion policies then in effect were applied in accordance with law and regulations applicable at the time.
5. 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 the aforementioned requirement.
6. In view of the foregoing, there is no basis for granting the applicant's request.
7. Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 June 1953; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
29 June 1956. 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
__SVW__ __RTD __ __DWT__ 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.
__ Sherri V. Ward_____
CHAIRPERSON
INDEX
CASE ID
AR20070000174
SUFFIX
RECON
DATE BOARDED
20070621
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
. . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
131.0000
2.
3.
4.
5.
6.
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