IN THE CASE OF:	  

		BOARD DATE:	        19 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017280 


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 he be promoted to colonel.

2.  The applicant essentially states that the 1986 Reserve Components Selection Board (RCSB) discriminated against Engineer Corps officers such as himself who did not possess a civil engineering degree or were not a bonafide civil engineer.

3.  The applicant provides a self-authored letter, dated 27 September 2008 and a letter, dated 24 June 2002, from the Office of the Inspector General, United States Army Reserve Personnel Command in support of this application. 

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 do not appear to be complete, as none of his officer evaluation reports or letters of non-selection for promotion are present.  However, there are sufficient remaining documents available to conduct a fair and impartial review of this case.

3.  The available records show that the applicant was commissioned a second lieutenant in the United States Army Reserve on 14 June 1959.  He was ordered to active duty for training (ADT) on 3 February 1960 and completed the Engineer Officer Basic Course, then was released from ADT on 2 August 1960 and reverted back to the USAR.  He reentered active duty on 23 June 1968 and served a tour in Vietnam, then was released from active duty on 14 July 1969 and reverted back to the USAR.  He was promoted to lieutenant colonel on 
9 October 1982.  

4.  Orders, dated 20 July 1987, directed the applicant's mandatory removal from the USAR effective 13 July 1987 and placed him in the Retired Reserve.

5.  In a self-authored letter, dated 27 September 2008, the applicant essentially stated that he has been seeking out officers for the last 22 years who could substantiate his claim of discrimination by the 1986 RCSB, but that it was no easy task.  He also stated that in letters to the Inspector General regarding this matter, they did not fully address the issue and displayed a cavalier attitude.  He further stated that he believes he found a common thread regarding the selection process for the 1986 RCSB, with that being that only Engineer Corps officer who were civil engineers either by graduating from an accredited engineer school or by special accreditation, of which there were none, were selected for promotion to colonel.  He also stated that since his degree was in industrial engineering, he "got the boot" on the first round and was not selected, and that the actions of the 1986 RCSB resulted in pure discrimination in the selection process.  Additionally, he claimed that he finally located a member of the 1986 RCSB after many years of searching, who will be referred to as Colonel D_____ throughout the remainder of these proceedings, and that Colonel D_____ stated to the best of his recollection that he and other selecting board members were told that on their initial review (first round) of the documentation to not consider, or, in other words, throw out the files of those officers who were not graduate civil engineers regardless of other qualifications.  Further, the applicant stated, in pertinent part, that the United States Army Reserve Components Personnel and Administration Center [now names the United States Army Human Resources Command, 
St. Louis, Missouri] holds the answers because they are the maintainers of the records, and that they appear reluctant to do the basic research necessary to prove his allegations.

6.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) essentially provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.  This regulation has consistently provided that board members will be administered an oath that they would perform the duties imposed on them, and that they will not divulge the proceedings or results thereof pertaining to the selection or non-selection of individual officers except to proper authority.  

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  This regulation also provides, in pertinent part, that the ABCMR is not an investigative body, and will decide cases on the evidence of record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be promoted to colonel.

2.  The applicant's contention that he located Colonel D_____, who presumably was a board member from the 1986 RCSB, was noted, as was his contention that Colonel D_____ allegedly recalled being told to not consider officers for promotion if they were not graduate civil engineers.  An inquiry revealed that a Colonel D_____ retired from the USAR in July 1991, and that he lives in Sacramento, California, which is  approximately 45 miles away from the applicant's city of Fairfield, California, a fact the applicant no doubt already knows as he stated that he located him.  Despite this fact, the applicant provided no written statement from Colonel D_____ in support of his application.  Even if the applicant had provided a statement from Colonel D_____, that statement alone would not approach the threshold of proving, by a preponderance of the evidence, that an error or injustice occurred.

3.  Inasmuch as selection boards do not divulge their reasons for selection or non-selection, there is no means to determine exactly why the applicant was not selected for promotion to colonel.  

4.  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.  In view of the foregoing, there is no basis for granting relief to the applicant in this case. 

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 throughout his military career, and especially during the Vietnam War.  The applicant and all Americans should be justifiably proud of his honorable 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)                                         AR20080017280



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017280



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1