IN THE CASE OF:	

		BOARD DATE:	     9 April 2009 

		DOCKET NUMBER:  AR20080011644 


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 that her records be corrected to show she was promoted to colonel (COL) (O-6) and placed on the Retired List in that rank and pay grade, with entitlement to retroactive pay and allowances.

2.  The applicant states she was recently cleaning out old records and found a copy of orders promoting her to COL.  She should have been retired as a COL and been receiving retired pay at that pay grade since August 1974.

3.  The applicant provides copies of her DD Form 214 (Report of Separation from Active Duty); a DD Form 215 (Correction to the DD Form 214); an excerpt from Army Regulation 635-100 (Personnel Separations, Officer Personnel); and Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, letter, dated 23 June 1975.

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, a career Army Reserve Nurse Corps officer, was commissioned as a first lieutenant in the U.S. Army Reserve (USAR) on 18 July 1949.  She served in an inactive status from her date of commission until 28 May 1952.

3.  The applicant volunteered for extended active duty and served on active duty from 29 May 1952 through 17 April 1958.

4.  On 18 April 1958, she transferred to the USAR Control Group (Reinforcement) and remained in that status until 14 June 1960.

5.  The applicant again volunteered for extended active duty.  She entered active duty on 15 June 1960 and served continuously until she retired from active duty.

6.  The applicant was promoted to lieutenant colonel (LTC) in the USAR on 14 November 1969.

7.  The applicant was promoted to LTC in the Army of the United States (AUS) on 11 June 1973.

8.  On 13 September 1973, the applicant was notified that she was nonselected for promotion to COL in the USAR.

9.  On 27 September 1973, the applicant was notified that there were no retention programs available for Reserve officers who had reached their maximum allowable years of active Federal service.  Therefore, she would be released from active Federal service under the provisions of Army Regulation 635-100, chapter 3, on 31 August 1974.  Since she was retirement eligible, she had the option to retire in lieu of being released from active duty.

10.  The applicant elected to retire effective 31 August 1974.  She was transferred to the USAR Control Group (Retired) effective 1 September 1974 with 20 years, 1 month, and 6 days of active Federal service and 5 years and 7 days of inactive service in the rank of LTC.

11.  A 23 June 1975 letter from The Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, notified the applicant she had been promoted to COL in the USAR with a date of rank of 24 July 1974 by a Standby Advisory Board.
12.  A letter, dated 10 January 1978, from the U. S. Army Military Personnel Center, Alexandria, Virginia, notified the applicant that, as a result of her promotion packet being referred to an Army Medical Department (AMEDD) Promotion Reconsideration Board, she had been selected for promotion, to LTC in the AUS, with a date of rank of 13 June 1972. 

13.  Previously, the ABCMR reviewed the applicant’s record and directed that her date of rank as an AUS LTC be adjusted to 13 June 1972.  A DD Form 215 was issued on 15 May 1978 adjusting her LTC date of rank.

14.  An advisory opinion was provided by the Chief, Special Actions Branch, DA Promotions, U.S. Army Human Resources Command, St. Louis, MO.  It was stated that the applicant was selected for promotion by a Board that adjourned on 24 July 1974.  It was noted that, at the time of the applicant's promotion to COL, an officer had to have served in the higher grade for a minimum of 185 days to be eligible to retire in the higher grade.  The applicant would have served only 1 month and 5 days of service in the higher grade and as such did not qualify for retirement in the higher grade.  The recommendation was that her request to be shown to have retired and been placed on the Retired List as a COL be denied.  Additionally, the recommendation was that since the applicant did not exercise reasonable diligence to receive back pay as a COL from 24 July 1974 through 31 August 1974 this portion of her request should also be denied.

15.  In the applicant's reply to the advisory opinion, she states that she is a 90 year-old totally disabled African American female who was taking care of aging and ill parents at the time of her retirement.  She states that she had been racially discriminated against throughout her career and post-service life.  Since she did not receive notice of her promotion until after she had retired she should be entitled to receive her promotion and the 185 day requirement to be retired in the higher grade should be waived.  She contends that if she had known about the promotion and the 185 day requirement, she would have continued on active duty to qualify for retirement as a colonel.

16.  A DA message, date-time group 182122ZSep73, in pertinent part, stated that the zone of consideration for promotion of Reserve Component Officers to the grade of colonel, by the AMEDD selection board to convene on 8 July 1974, will include all eligible LTCs who have completed 5 years promotion service and 21 years total commissioned service on or before 31 December 1975.



17.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-1b, stated that an officer's active duty grade would not be altered as the result of a promotion in the USAR.  

18.  Army Regulation 635-100 (Personnel Separations), chapter 3, as then in effect, provided policy and procedures for the separation of Regular and Reserve commissioned officers on active duty.  It states that a Reserve commissioned officer would be mandatorily relieved from active duty upon completion of 20 years of active Federal service.  Officers who are otherwise qualified for retirement may elect to transfer to the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states she was promoted to COL on 24 July 1974 and should have been receiving retired pay as a COL since August 1974.

2.  The applicant was promoted to LTC in the USAR with a date of rank of 8 November 1969 and in the AUS with a date of rank of 11 June 1973.  

3.  After she retired, the applicant was considered and selected for promotion to COL, in the USAR, under the 1974 criteria and given a date of rank of 24 July 1974.  

4.  Unfortunately, in accordance with the applicable regulation the applicant's active duty (i.e., her AUS) grade was not to be altered as a result of her USAR promotion to COL.  Therefore, she would not have been due any pay as a result of that promotion and she was still an AUS LTC when she retired from active duty.  

5.  The applicant did not have the option to request continuation on active duty since her release from active duty was mandated based on her completion of 20 years of active service as a Reserve officer.

6.  Regulations, in effect at the time, required an officer to serve in the higher rank for 185 days in order to retire in the higher grade.  Even if the applicant had been promoted to AUS COL, based on the date of rank that she received she not only did not but could not have served in that rank long enough to meet the 185 day requirement for retirement.  Regrettably, therefore, she is not entitled to be shown to have retired in the rank of COL.



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)                                         AR20080011644



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ABCMR Record of Proceedings (cont)                                         AR20080011644



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