IN THE CASE OF:	  

		BOARD DATE:	  21 January 2009

		DOCKET NUMBER:  AR20080007145


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, through his Member of Congress (MOC), in effect, correction of his date of rank for 1st Lieutenant (1LT) and promotion to Colonel (COL).

2.  The applicant states, in effect, that his date of rank for 1LT prevented him from achieving the rank of COL before his mandatory retirement.  He adds, in effect, that it was a failure of the United States Army Reserve (USAR) to promote him to 1LT with a date of rank concurrent with his Army National Guard (ARNG) appointment of 13 April 1953.  The USAR appointment was made on 12 October 1954, some 18 months later.  His mandatory eligibility date for promotion to Captain (CPT) would have been 13 April 1957.  Since mandatory promotions were based upon the USAR appointment as a 1LT on 13 October 1954 [sic], the following comparison illustrates the impact associated with this error:

   Correct Rank and Date of Rank					Army Appointments

   1LT							13 April 1953			1LT		12 October 1954
   CPT							13 April 1957			CPT		30 June 1960
   Major (MAJ)					13 April 1964			MAJ		30 June 1967
   Lieutenant Colonel (LTC)	13 April 1971			LTC		30 June 1974
   COL							13 April 1976						

   Mandatory Retirement Date:  30 June 1977

3.  The applicant also states, in effect, that another error was made when he was non-selected for promotion to CPT.  Upon his inquiry, the Department of Army stated that he was not professionally qualified, when in fact he was qualified by having completed the Company Grade Armor Officers Course.  Upon making another inquiry and proving he completed the armor school on 15 September 1953, the Army acknowledged the error but would not make his date of rank to CPT retroactive to the date when the non-selection occurred.  He again transferred, according to applicable regulation, to the control group and was promoted to CPT with an effective date of 30 June 1960.

4.  The applicant further states that he lost 18 months in grade when the USAR failed to effect the ARNG promotion concurrently with his ARNG appointment. He also lost 12 months when he was erroneously non-selected for CPT and while he transferred in and out of active Reserve units and control groups.  When all the time he was penalized and lost is considered, he would have had more than sufficient of time in grade to be considered for a mandatory promotion to the rank of COL.

5.  The applicant states, in effect, that granted, many years have passed since the mistakes occurred; however, he wants to pursue that to which he is rightfully entitled.  He states he sent letters, dated 1 and 23 December 1959, wherein he inquired within three years and he feels that efforts to identify and correct the error should be made because of his honorable service while he served on active duty in both World War II and the Korean Conflict.  His service in the USAR and the ARNG totaled approximately 33 years and he served 8 years with a medical Reserve unit for points only and received no pay.  Additionally, he made every effort to better qualify himself for promotion to full COL by completing the Command and General Staff College via the Reserve school in 1967.  He also successfully completed the Industrial College of the Armed Forces.

6.  In support of his application, the applicant provides copies of Special Orders Number 25, Headquarters, XX United States Army Corps (Reserve), Fort Hayes, Ohio, dated 5 February 1959; a copy of a letter addressed to him from Headquarters, XX United States Army Corps (Reserve), Subject:  Promotion of Commissioned Officers, Army Reserve, Not on Active Duty (Non-Unit), dated 20 February 1959; a copy of a letter addressed to him from Headquarters, Second United States Army, Fort George G. Meade, Maryland, Subject:  Nonselection for Reserve Promotion by First Selection Board, dated 23 June 1959; a copy of a letter addressed to his MOC by the Office of the Chief of Legislative Liaison, Washington, DC, dated 19 June 2006; and a letter he addressed to his MOC to advise him of action he was taking with regards the correction of his records.

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 records show he was appointed in the USAR from the Reserve Officers Training Corps, as a 2nd lieutenant (2LT), effective 3 June 1949 with prior enlisted service.  

3.  The applicant was called to active duty and entered on 19 February 1951.  He was promoted to 1LT in the Army of the United States effective 19 August 1951.  He was separated from active duty on 11 November 1952 and transferred to the USAR. He completed the Associate Armor Company Officer Course on 15 September 1953.

4.  The applicant was appointed in the Tennessee ARNG (TNARNG), as a 1LT, effective 13 April 1953, with Federal recognition.  

5.  Item 12 (Appointments) of the applicant's DA Form 66, Officer Qualification Record, shows he was promoted to 1LT in the Army of the United States effective 19 August 1951; to 1LT in the Army National Guard of the United States effective 1 September 1953; and to 1LT in the USAR effective 12 October 1954.

6.  He was separated from the TNARNG and his Federal recognition was terminated by reason of resignation, on 8 October 1956.  He was reassigned to the USAR effective 9 October 1956.

7.  The applicant was reassigned from a Reserve unit to the USAR Control Group (Reinforcement), effective 5 February 1959, by Special Orders Number 25, prepared by Headquarters, XX United States Army Corps (Reserve), Fort Hayes dated 5 February 1959.

8.  The applicant was advised in a letter, Subject:  Promotion of Commissioned Officers, Army Reserve, Not on Active Duty (Non-Unit), from Headquarters, XX United States Army Corps (Reserve), Fort Hayes, dated 20 February 1959, he was being considered for promotion to CPT pursuant to the authority of Army Regulation 135-155, paragraph 15.

9.  On 23 June 1959, the applicant was advised in a letter, Subject:  Nonselection for Reserve Promotion by First Selection Board, prepared by Headquarters, Second United States Army, Fort George G. Meade, he had been considered but was not selected for promotion to CPT by a Reserve selection board.

10.  Special Orders Number 143, prepared by Headquarters, XX United States Army Corps (Reserve), Fort Hayes, dated 23 July 1959, show the applicant was reassigned from the USAR Control Group (Reinforcement) to a Reserve unit effective 23 July 1959.

11.  Item 12 of the applicant's DA Form 66 shows he was promoted to CPT with an effective date of 30 June 1960.  This same item shows the applicant was transferred from the Armor branch to the Medical Service Corps, in the rank of CPT with an effective date of 24 March 1964.

12.  Item 12 of the applicant's DA Form 66 also shows he was promoted to MAJ with an effective date of 5 July 1967 and a date of rank of 29 June 1967.  Item 16 (Civilian Education and Military Schooling) of the applicant's DA Form 66 shows he completed the Command and General Staff College in 1967.

13.  On 2 December 1969, the applicant was notified in a letter, Subject:  Waiver for Retention in the USAR, prepared by the Office of The Adjutant General, US Army Administration Center, St. Louis, Missouri, he had been granted a waiver for retention in the USAR for retirement year ending 30 June 1969.

14.  On 22 November 1971, the applicant was notified in a letter, Subject:  Notification of Eligibility for Retired Pay at Age 60, prepared by the Office of The Adjutant General, US Army Administration Center, St. Louis, he had completed the required years of service for retired pay, upon application, at age 60.

15.  Item 12 of the applicant's DA Form 66 further shows he was promoted to LTC with an effective date of 28 June 1974. 

16.  Item 11 (MRD [Mandatory Removal Date]), Section B, Promotion Criteria, of a Promotion Consideration Data Sheet, contained in the applicant's service records shows his mandatory removal date to be 2 July 1977.


17.  The applicant submitted a copy of a letter from the Congressional Inquiry Division, Office of the Chief of Legislative Liaison, dated 19 June 2006, wherein his MOC was advised, in effect, that he [the applicant] had the right to request a review of his concerns by the ABCMR.  The MOC was asked to advise the applicant that his right to apply did not imply than an error or injustice occurred, nor that submission of an application would ensure that a hearing would be held or that his request would receive favorable action.

18.  On 6 March 2008, the applicant submitted a request to the ABCMR for consideration of his case through his MOC.  The applicant's MOC asked that his constituent be given every possible consideration and that he be kept advised until a final determination had been rendered.

19.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), in effect at the time, prescribed the policies and procedures for the promotion of Reserve and ARNG officers.  This regulation specified that an officer in the grade of second lieutenant would be considered for promotion with review by an administrative promotion board.  Promotion to 1LT required completion of 3 years time in grade from the date of acceptance of appointment and completion of a resident officer basic course.  The officer's records would be screened to determine eligibility for promotion to 1LT far enough in advance to permit promotion on the date promotion service was completed.

20.  Army Regulation 135-155 also prescribed that promotion to CPT required completion of 6 years time in service, 4 years time in grade of 1LT, whichever was later, and completion of the basic officer's regular or associate course.  Unit officers were eligible for promotion on the date of assignment to the higher graded position.  Non-unit officers were eligible for promotion on the date of completion of service or the date of assignment to a non-unit status.  Promotion from LTC to COL required completion of 5 years time in grade and promotion consideration was announced annually. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been promoted to 1LT with a date of rank concurrent with his ARNG appointment of 13 April 1953 and he was prevented from achieving the rank of COL before his mandatory retirement.  


2.  The evidence shows he was appointed in the Reserve as a 2LT effective       3 June 1949.  He was ordered to and entered on active duty on 19 February 1951 and was promoted to 1LT in the Army of the United States on 19 August 1951.  

3.  Based on the regulatory requirement to complete 3 years time in grade, his PED for a USAR promotion to 1LT was 2 June 1952.  However, he was released from active duty and transferred to the USAR on 11 November 1952 in the grade of 1LT.  His records indicate that his 1LT promotion carried over into the USAR, as it should have.  He was appointed in the ARNG as a first lieutenant on 13 April 1953.  

4.  It cannot be determined, at this late date, why the applicant's DA Form 66 also indicates that he was promoted to 1LT in the Army National Guard of the United States effective 1 September 1953; and to 1LT in the USAR effective 12 October 1954.  However, the applicant could have raised the question at the time, when more facts would have been available.

5.  The applicant also contends that his promotion to CPT was erroneously delayed because it was believed he was not educationally qualified.  However, there is no clear evidence to support his contentions.  Without evidence to the contrary, at this late date it is not known if the applicant met all the requirements for promotion to CPT or not.  

6.  The evidence shows the applicant was promoted to LTC on 28 June 1974 and had an MRD of 2 July 1977.  Based on the need to satisfy time in grade requirements after his promotion to LTC, the applicant would not have been eligible for consideration for promotion to COL prior to his MRD.  Because he was not eligible for consideration for COL at the time, he is not now eligible for promotion to COL.

7.  The applicant’s records fail to support the applicant’s contention that his promotion to 1LT was unjustly delayed; thereby, also delaying his promotions to CPT, MAJ, and LTC.  Due to the applicant's failure to identify any problems with his promotions as they were occurring, at this late date there is no way of knowing if he would have been selected any earlier.  The applicant has failed to submit evidence that would show he was qualified for his promotions any earlier than those dates he was promoted.  

8.  In view of the circumstances in this case, the applicant is not entitled to correction of his date of rank for 1LT and promotion to Colonel.  He has not shown error, injustice, or inequity for the relief he now requests.  In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ____x___  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.




      __________x____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080011568



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ABCMR Record of Proceedings (cont)                                         AR20080007145


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