RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20070009990 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 effective date and date of rank (DOR) to lieutenant colonel (LTC) be corrected to 28 February 2003.

2.  The applicant states that he was selected for promotion to major by a mandatory board and was eligible for promotion to that rank on 31 July 1996.  However, he was never notified that he had been considered or selected for promotion to major.  As such, he wasn’t promoted to that rank until 15 May 1998, which was 21 months and 15 days after his promotion eligibility date (PED).

3.  The applicant contends that if he had known that he had been selected for promotion, he would not have accepted an appointment in the Army National Guard (ARNG), or would have elected to leave the ARNG to accept the promotion.

4.  The applicant continues that because of the 21 ½ month delay in his promotion to major, his promotion to LTC was delayed which will result in his delayed consideration for promotion to colonel (COL).

5.  The applicant acknowledges that he signed a “Delay of Promotion” memorandum on 8 February 1998.  However, he charges that the choices that were provided to him did not explain that he could have left the ARNG to accept the promotion.  The applicant contends that he would have chosen to leave the ARNG if he would have know that he could have been promoted to major effective 31 July 1996 if he had done so. 

6.  The applicant explains that the choices provided to him included “resignation from the Army National Guard (with withdrawal of federal recognition as a ARNGUS officer) and transfer FROM promotion in the USAR.”  He contends that the “FROM” should have been “FOR” and, therefore, the choice took on an entirely different meaning than it was intended to have.

7.  The applicant then describes the regulatory requirements for an officer being considered for mandatory promotion, and contends that these requirements were not adhered to in his case.

8.  The applicant adds that the ABCMR has approved other cases with similar circumstances.



9.  The applicant provides:

	a.  A promotion memorandum dated 6 June 1997 which shows that the applicant was selected for promotion to major effective the later of the following dates:  31 July 1996 and 11 April 1997 (date of Federal recognition).

	b.  A memorandum from the applicant, himself, dated 8 February 1998, in which he stated that he elected to delay his promotion to major.  In that memorandum the applicant stated that he understood that he could then or at any time during the period of promotion delay select one of the following options: (1) immediate promotion if my commander (or higher authority) has offered a position vacancy in which I am now assigned or will be reassigned for promotion [This option includes authorized over grade promotions or promotions while on tour.]; (2) resignation from the Army National Guard (with withdrawal of Federal recognition as a ARNGUS officer) and transfer to the Individual Ready Reserve from promotion in the USAR; or (3) choose to decline the promotion, at which time my name will be withdrawn from the promotion list . . .”

	c.  A promotion memorandum dated 10 January 2005 which shows that the applicant was promoted to LTC effective 16 December 2004.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military records could not be located.  However, the documents provided by the applicant are considered sufficient for the Board to conduct a fair and impartial consideration of the case.

3.  In the processing of this case an advisory opinion was obtained from the Human Resources Command (HRC), St. Louis, Missouri.  In that opinion the HRC stated that the applicant was selected for promotion to major with a PED of 31 July 1996.  The HRC stated that the earliest the applicant could have been promoted would have been 27 August 1997, the date the promotion list was approved.  However, since the applicant was not in a higher graded position on 27 August 1997, he applied for and was granted, a delay of promotion.  The applicant was subsequently promoted to major on 1 May 1998, the date of his assignment to a higher graded position.  The HRC adds that with a DOR to major of 1 May 1998, his earliest eligible promotion board for consideration to LTC was the 2004 board, which selected him, which resulted in his being given a DOR of 16 December 2004, the date of his assignment to a higher graded position in a troop program unit.  The HRC recommended disapproval of the applicant’s request.

4.  The applicant was provided a copy of the advisory opinion and submitted a rebuttal.  In that rebuttal he modifies his request to correcting his DOR to major to 27 August 1997, and his DOR to LTC to 16 December 2003.  The applicant states that the advisory opinion does not refute his contention that he was unaware of the fact that he could leave the ARNG and accept his promotion to major.  Therefore, his declination letter is not valid and therefore should be rescinded and removed from his record.  The applicant explains that since the advisory opinion does not address the wording of the delay of promotion memorandum, his assertions are unchallenged and must be considered valid.  The applicant summarizes his key issues as the delay of promotion memorandum was worded inadequately, did not contain all of the facts, contained untrue information, was meant to intimidate the officer, and was presented as an ultimatum to the officer for the purposes of retention in the ARNG and not in the best interest of the Soldier.  The applicant submits documents in support of his rebuttal which he lists in a table of contents.  Those documents include an ABCMR Record of Proceedings.

5.  Army Regulation 135-155, Promotion of Commissioned Officers and Warrant Officers Other Than General Officers, in effect at the time, paragraph 4-19, Effective Dates, states that the effective date for promotion of officers assigned to troop program units is the date that mandatory service requirements and promotion eligibility requirements are completed, and the officer is either assigned to a position vacancy in the higher grade or is transferred to a non-unit status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s primary contention is that he, a promotable captain assigned to a troop program unit in the ARNG, did not know that he could accept his promotion to major if he transferred to the Individual Ready Reserve (IRR).
2.  Implicit in the Army's promotion system is the universally accepted principal that officers have a responsibility for their own careers.  The general requirements and workings of the system are widely known.  Given the applicant’s grade and years of service he knew, or should have known, that he could request transfer to the IRR to accept his promotion to major.

3.  However, if the applicant had been transferred to the IRR, he would not have earned pay or retirement points for attendance of drills.  For that matter, to approve the applicant’s request, the ABCMR would have to correct his records to show that he was transferred from his ARNG unit to the IRR effective 27 August 1997.  Such a correction would result in a collection of the money he earned while assigned to the IRR since he would not have been assigned to his ARNG Unit Identification Code (UIC) when the drills were performed.

4.  Central to the applicant’s argument is the use of the word “FROM” on the delay of promotion memorandum.  Notwithstanding this apparent typographical error, as already discussed, the applicant would be expected to know what his options were in regard to his selection for promotion.  

5.  As for the ABCMR Record of Proceedings submitted by the applicant in support of his request, the circumstances of that case are not the same as the applicant’s circumstances.  In addition, every case reviewed by the ABCMR is considered on its own merit.  As such, the ABCMR does not consider its prior decisions when making its recommendation.

6.  In view of the foregoing, there is no basis for changing the applicant’s DOR to either major or LTC.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JLP  __  __TSK__  __DWT__   DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

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.





      ___        TSK                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070009990



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
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