IN THE CASE OF:
BOARD DATE: 27 JANUARY 2009
DOCKET NUMBER: AR20080007273
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, in effect, that his records be corrected to show that he served in a dual status as an active duty master sergeant and as a Reserve captain and that he be considered for promotion to the rank of major.
2. The applicant states, in effect, that he was informed at the time of his retirement from active duty that he would continue to be considered for promotion in his Reserve grade; however, this has not occurred and he desires to be considered for promotion to the next higher grade and promoted if selected.
3. The applicant provides a copy of his DD Form 215 (Correction to DD Form 214), and a copy of a letter from the Army Finance and Accounting Center dated 12 December 1986 indicating that he had been promoted to the rank of captain in the United States Army Reserve (USAR) and that no additional monies were due him.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 30 April 1965 and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 31 January 1979.
3. On 13 February 1981, he accepted a direct appointment as a USAR first lieutenant. He continued to serve on active duty in an enlisted status and maintained his dual status as a Reserve infantry commissioned officer.
4. He was promoted to the rank of master sergeant (E-8) on 1 March 1983 and on 12 February 1985, he was promoted to the rank of captain in the USAR.
5. On 30 April 1985, the applicant was honorably released from active duty in the pay grade of E-8 and was transferred to the Army of the United States (AUS) Retired List in that pay grade effective 1 May 1985. He had served 20 years and 2 days of total active service. He was also transferred to the USAR Control Group (Retired) in the rank of captain.
6. In the processing of this case a staff advisory opinion was obtained from officials at the Human Resources Command - St Louis (HRC-STL) which opines that the applicant is no longer entitled to promotion consideration since the time he was transferred to the Retired Control Group. Officials further state that the applicant has not performed any service as an officer since he retired and thus would have no evaluations to be considered by a promotion selection board. If he was considered and twice non-selected, his retirement as a USAR officer would be voided and he would be discharged from Reserve status. The applicant was also advised of this information by telephone on 2 December 2008. Officials at the HRC-STL recommended that his request be denied. The advisory opinion was provided to the applicant for comment and on 4 January 2009, the applicant responded by electronic mail (e-mail) that no response to the advisory opinion would be forthcoming.
7. Army Regulation 135-155 provides policy and procedures for the selection and promotion of commissioned officers of the USAR. It provides, in pertinent part, that in order for an officer to be eligible for consideration for promotion, the officer must be in an active Reserve status. Assignment to the Retired Reserve does not constitute active Reserve service and is not creditable for qualifying service.
DISCUSSION AND CONCLUSIONS:
1. The applicant's records correctly reflect his dual status as a master sergeant and as a USAR captain. He was correctly transferred to the AUS Retired list in the rank of master sergeant and the Retired Control Group as a captain.
2. Inasmuch as the applicant was not serving in an active USAR status after his retirement from the Regular Army, he was not entitled to promotion consideration to the next higher grade. Accordingly, there appears to be no basis to grant his request.
3. 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 this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X_____ ___X_____ ____X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ XXX _______ ___
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) AR20080007273
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ABCMR Record of Proceedings (cont) AR20080007273
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