IN THE CASE OF:	  

		BOARD DATE:         23 July 2009

		DOCKET NUMBER:  AR20090004081 


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 retired in the rank of major.

2.  The applicant states that his name was signed to an endorsement on 22 June 1969 refusing a promotion and that it is not his signature.  He states that the Army National Guard elected not to handle his situation even though the incident occurred on their watch.  He concludes by stating that he knows and trusts that with the help of God the injustice that was done to him will be corrected in 2009.

3.  The applicant provides a self-authored, undated statement addressed to the Army Review Boards Agency; a letter, dated 18 February 1970, addressed to his commanding officer stating that he desires to resign from the Texas Army National Guard (TXARNG); a statement, dated 9 July 2008, addressed to two United States Senators; a copy of an endorsement, dated 22 June 1969; a copy of an endorsement addressed to the applicant from the TXARNG Staff Administrative Assistant requesting that the applicant advise that department of his desired course of action; and copies of his United States Army Officer Evaluation Reports.

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.  After completing 9 years, 10 months, and 17 days of prior enlisted service as a member of the TXARNG; the applicant accepted an appointment as a second lieutenant in the TXARNG on 1 November 1962.  

3.  Records show that he was promoted to the rank of first lieutenant on 31 October 1965.

4.  On 28 February 1969, the applicant was notified that was selected for promotion to the rank of captain as a Reserve commissioned officer.  The notification shows that his promotion would be effective on 30 October 1969.  In the notification, the applicant was informed that if he accepted the promotion and Federal Recognition was not extended in the next higher grade, he would be transferred to the United States Army Reserve (USAR) on the day following the date of termination of Federal recognition in his current grade.

5.  The endorsement that the applicant submits in support of his appeal shows that on 28 February 1969 he was notified by the commanding officer of his eligibility for promotion as a Reserve commissioned officer.  The endorsement indicates the action should be returned to the headquarters to which he was assigned no later than 15 October 1969.  The endorsement the applicant submitted does not contain the signatures of his commanding officer or the TXARNG Adjutant.  

6.  On 5 June 1969, the TXARNG, Staff Administrative Assistant requested that the applicant advise through channels his desired course of action regarding his eligibility for promotion as a Reserve commissioned officer no later than 
3 November 1969.

7.  The applicant’s records show that, on 22 June 1969, he signed the endorsement and indicated he desired to decline the promotion at the time.  The endorsement was forwarded through his headquarters to the office of The Adjutant General for the State of Texas, on 22 June 1969.  The original endorsement contains not only his signature but the signatures of his commanding officer and the TXARNG Adjutant.

8.  The applicant’s records show that his declination for promotion was approved by the appropriate authority on 3 July 1969.

9.  On 18 February 1970, the applicant notified his commanding officer of his desire to resign from the TXARNG to accept an assignment at the 4151 USAR School, Houston Texas.  In the notification, the applicant indicated he was making this request because he was unable to arrange his personal affairs to permit attendance of the Basic Airborne Course to become Airborne qualified.  His signature on this request appears to be identical to the signature on the      22 June 1969 endorsement.

10.  On 1 March 1970, the applicant was honorably discharged from the TXARNG to accept an assignment in the 4151st USAR School, Houston, Texas.  He was promoted to the rank of captain on 15 August 1970.

11.  The applicant retired from the USAR and he was placed on the Retired List on 3 April 1994 in the rank of captain.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he retired in the rank of major, because he never signed the endorsement declining to be promoted.

2.  The applicant’s contentions have been considered and they are not substantiated by the evidence of record.  The available evidence shows the applicant signed an endorsement declining promotion to captain on 22 June 1969.  His declination was approved by the appropriate authority on 3 July 1969 and the applicant was not promoted according to his own desires. 

3.  The signature on the endorsement that the applicant contends is not his has been reviewed.  The endorsement that the applicant submitted does not contain the signatures of his commanding officer or the TXARNG Adjutant.  However, the original endorsement which is included in his official records contains not only his signature, but the signatures of his commanding officer and the TXARNG Adjutant.  In addition, the signature on this endorsement appears to be identical to his signature on his request to accept an assignment at the 4151st USAR School.

4.  The preponderance of evidence suggests that the applicant willingly signed the endorsement declining promotion and he has provided insufficient evidence to prove otherwise.  The burden of proof that an error or injustice exists rests with the applicant.  The applicant was promoted to captain soon after he transferred to the USAR.  Therefore, it does not appear that it was his 22 June 1969 declination of promotion to captain that resulted in his failure to be promoted to major.

5.  In order to justify correction of a military record the applicant must show 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.

6.  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)                                         AR20090004081



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ABCMR Record of Proceedings (cont)                                         AR20090004081



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