IN THE CASE OF:	  

		BOARD DATE:	       24 September 2009

		DOCKET NUMBER:  AR20080016139 


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, consideration for and promotion to lieutenant colonel (LTC).   

2.  The applicant states, in effect, that 8 years of his records were lost or destroyed and he was never considered for promotion to LTC in the U.S. Army Reserve (USAR).

3.  The applicant provides the following documents in support of his application:  self-authored statements; a recommendation for promotion letter by a Colonel (Retired), a United States Army Pacific letter by the Commander-in-Chief, dated 22 June 1973; a U.S. Army Human Resources Command, St. Louis, MO letters, dated 26 December 2006, 23 April 2007, and 13 September 2007; a Department of Defense Inspector General letter, dated 24 August 2007; a Department of the Army, Office of the Deputy Chief of Staff for Logistics letter, dated 24 January 1972; a Headquarters, VII Corps letter by the Commanding General, dated
15 August 1977; a DA Form 66 (Officer Qualification Record); a DA Form 638 (Recommendation for Award) of the Legion of Merit, with citation; a DD Form 214 (Report of Separation from Active Duty) for the period ending 4 December 1974; a Quartermaster Officer Career Course Diploma, dated 9 December 1966; an Industrial College of the Armed Forces Certificate, dated 10 July 1969, for completion of the correspondence course "National Security Management"; and a United States Army Europe, European Exchange System, Certificate of Achievement, dated 22 July 1966.


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 record shows he served on active duty in the U.S. Air Force for 2 months and 28 days from 4 January through 29 March 1950, at which time he was honorably discharged as a result of being eliminated from flight training.

3.  On 6 February 1951, the applicant enlisted in the Regular Army (RA) and he entered active duty in that status.  He served on active duty for 2 years and
4 days until 9 February 1953, at which time he was honorably released from active duty (REFRAD), and transferred to the Enlisted Reserve Corps (ERC) to complete his military service obligation.

4.  On 13 April 1954, the applicant was appointed a second lieutenant (2LT) in the USAR.  He was promoted to first lieutenant (1LT) on 13 April 1957, and to captain (CPT) on 18 January 1961.  

5.  On 28 September 1961, the applicant entered active duty.  He was considered and not selected for promotion to major (MAJ) by a Department of Army (DA) MAJ, Army of the United States (AUS), Promotion Selection Board on 28 May 1965.  

6.  On 17 June 1966, the applicant was promoted to MAJ in the AUS and on
26 September 1967, he was promoted to MAJ in the USAR. 

7.  On 22 May 1969, the applicant was considered but not selected for temporary promotion to LTC by the DA AUS Promotion Selection Board.  

8.  On 26 June 1970, the applicant was notified that an administrative review of his efficiency report for the period 22 July 1967 through 26 December 1967 had resulted in the report being changed and/or voided.  Therefore, his record was 
referred to the Standby Advisory Board (STAB) for reconsideration for promotion to LTC under the same criteria and instructions established by the May 1969 DA AUS LTC Promotion Selection Board.

9.  On 10 July 1970, the applicant was reconsidered for promotion to LTC, AUS by the DA STAB under same criteria and instructions established for the regularly constituted AUS LTC board that adjourned on 22 May 1969. The STAB did not select the applicant for promotion to LTC, but did select him for continuation in the rank of MAJ.  

10.  On 4 June 1971, the applicant was considered but not selected for promotion to LTC by a DA LTC AUS Promotion Selection Board.  

11.  The applicant's record is void of any indication that the records of the applicant reviewed by the various boards that considered him for promotion were incomplete or lost.  

12.  On 2 May 1973, the applicant was notified that based on his two time non-selection for promotion to LTC, he was required to be released from active duty (REFRAD) within 90 days of his non-selection notification under the provisions of chapter 3, Army Regulation 635-100 (Personnel Separations – Officer Personnel).

13.  On 4 December 1974, the applicant was honorably REFRAD under the provisions of paragraph 5-8e (1), Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation), by reason of permanent physical disability retirement.  The DD Form 214 he was issued at that time shows he held the rank of MAJ at the time of his REFRAD.  It also shows he completed a total of 15 years, 10 months, and 16 days of active Federal service and a total of 24 years and 25 days of service for pay purposes.

14.  Army Regulation 635-100, in effect at the time, prescribed the authority for the separation of commissioned and warrant officers from the active Army.  Paragraph 3-65 stated that Reserve commissioned officers serving on active duty as commissioned officers and AUS commissioned officers who failed a second time to be considered fully qualified under Army Regulation 624-100 (Promotion of Officers on Active Duty), for promotion to temporary AUS grade of CPT, MAJ, or LTC, will be relieved from active duty on the 90th day after receipt of involuntary release notification unless voluntary earlier release is requested.

15.  Title 10, U.S. Code, section 1212 (Disability severance pay) states that upon separation from the armed forces under section 1203 or 1206 of this title, a member is entitled to disability severance pay computed by multiplying his years of service, but not more than 12, computed under section 1208 of this title, by, in pertinent part, twice the amount of monthly basic pay to which he would be entitled if serving (1) on active duty on the date when his name was placed on 
the temporary disability retired list or, if his name was not carried on that list, on the date when he is separated, and (2) in the permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is separated and which was found to exist as a result of a physical examination (emphasis added).

16.  Title 10, U.S. Code, section 1370(d) (Commissioned officers: general rule; exceptions), provides rules for retirement in the highest grade held satisfactorily and provides, in pertinent part, that in order to be eligible for voluntary retirement under any provision of this title in a grade above major, a reserve commissioned officer of the Army must have served in an active status in that grade for not less than 3 years, or in a retired status on active duty, for not less than 3 years, or if transferred because of disability served in an active status in that grade at least 
6 months.

17.  Department of Defense Financial Management Regulation (DODFMR), Volume 7B (Military Pay Policy and Procedures - Retired Pay), Chapter 1 (Initial Entitlements - Retirements), section 0105 (Rank and Pay Grade), paragraph 0105E (General Determinations - Reserve Officers) states, in pertinent part, that unless entitled to a higher grade under some other provision of law, those Regular and Reserve members who retire other than for disability, will retire in the Regular or Reserve grade they hold on the date of retirement.  This document also provides, in pertinent part, to receive credit for satisfactory service in a grade above MAJ/O-4, a person must serve satisfactorily in that grade, as determined by the Secretary of the Military Department concerned, as a Reserve commissioned officer in an active status, or in a retired status on active duty, for at least 3 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was not properly considered for promotion to LTC because 8 years of his record were lost or destroyed, therefore, he should be considered at this time for promotion to that grade.  However, the evidence of record and independent evidence submitted by the applicant fails to show the records reviewed by the various boards that considered him for promotion were incomplete or lost.  As a result, there is insufficient evidence to support this claim.

2.  The evidence of record confirms that the applicant was properly considered and not selected for promotion to LTC by two properly constituted DA promotion selections boards, which included a third consideration and non-selection by a STAB.  As a result, by regulation, he was required to REFRAD not later than 
90 days after his final notification of non-selection, which would have been approximately August 1973.  However, it appears he subsequently entered the Physical Disability Evaluation System (PDES), which delayed his separation and ultimately led to his discharge by reason of disability on 4 December 1974.  As a result, it appears he was properly considered for promotion to LTC by two properly constituted DA promotion selection boards and a STAB, and he was pending mandatory separation due to two time non-selection at the time of his disability processing. 

3.  Absent any evidence of error or injustice related to the applicant's two time non-selection for promotion, there is an insufficient evidentiary basis to support granting the applicant's requested relief. 

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)                                         AR20080016139



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ABCMR Record of Proceedings (cont)                                         AR20080016139



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