IN THE CASE OF:	 

		BOARD DATE:	  03 June 2010

		DOCKET NUMBER:  AR20090015619 


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 promotion to major (MAJ) and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service in Korea as well as awards of the Korea Defense Service Medal (KDSM) and the Global War on Terrorism Service Medal (GWOTSM).

2.  The applicant did not make a statement.

3.  The applicant provides the following additional documentary evidence:

* Copies of his DD Forms 214, dated 28 February 2003 and 3 November 1986
* A copy of a memorandum, dated 13 May 2003, Subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty
* A copy of a memorandum, dated 19 July 1993, Subject: Results of the 1993 Captain (CPT)-MAJ APL (Army Promotion List) DA (Department of the Army) Selection Board
* A copy of his DD Form 215 (Correction to DD Form 214), dated 5 June 2008
* Copies of his DA Forms 67-8 (Officer Evaluation Report) for the periods 9 February 1982 through 5 August 1982 and 6 August 1982 through 23 February 1983




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.  With respect to the issues of the KDSM and the GWOTSM, the applicant was issued a DD Form 215 on 5 June 2008 that listed both awards.  Therefore, this issue will not be discussed further in this Record of Proceedings.

3.  The applicant's records show he was appointed as an Air Defense Artillery (ADA) second lieutenant in the U.S. Army Reserve (USAR) and executed an oath of office on 22 August 1981.  He subsequently entered active duty on 3 September 1981, completed several military training courses, and attained the rank of CPT.

4.  His records also show he served in Korea from on or about 17 March 1982 to on or about 23 February 1983. 

5.  He was honorably released from active duty on 3 November 1986 and he was transferred to the USAR Control Group (Reinforcement).  His DD Form 214 shows he completed 5 years, 2 months, and 1 day of creditable active service, of which 1 year and 2 months was foreign service (shown in item 12f (Foreign Service)).

6.  His records further show he was appointed as an ADA CPT in the New York Army National Guard (NYARNG) and he executed an oath of office on 26 May 1987.  He subsequently served in various staff and leadership positions within the NYARNG.

7.  On 18 April 1988, he entered active duty in an Active Guard Reserve (AGR) status.  He was assigned to the 221st Engineer Group, Buffalo, NY.


8.  On 13 May 1993, by memorandum, the U.S. Army Reserve Personnel Center (now known as the U.S. Army Human Resources Command (USAHRC)), St. Louis, MO, notified him that he had been selected for promotion to MAJ by the April 1993 Reserve Components Selection Board (RCSB) and that his promotion eligibility date and grade would be used to compute his time in grade for promotion to the next higher grade.  The effective date of promotion would be the later of the following:

	a.  21 August 1993,

	b.  Date Federal recognition is extended in the higher grade, or

	c.  Date following date Federal recognition is terminated in current Reserve grade.

9.  His DA Forms 67-8 show the following entries:

	a.  From 1 March 1993 through 14 September 1994 he served as an assistant S-3, a CPT position, with the 152nd Engineer Battalion, Buffalo, NY

	b.  From 15 September 1994 through 14 September 1995; 15 September 1995 through 14 September 1996; 15 September 1996 through 14 September 1997, 15 September 1997 through 28 February 1998, 1 March 1998 through 31 May 1998, and 1 June 1998 through 31 October 1998, he served as the battalion S-1, a CPT position, with the 152nd Engineer Battalion, Buffalo, NY.

	c.  From 1 November 1998 through 31 October 1999 and 1 November 1999 through 31 October 2000, he served as a plans officer, a CPT position, with the Engineer Brigade, 42nd Infantry Division, Buffalo, NY.

10.  On 25 September 2000, the NYARNG published Orders 269-015 releasing him from active duty effective 30 November 2000 by reason of substandard performance.

11.  On 30 November 2000, he was honorably discharged from active duty in the rank of CPT.  His DD Form 214 shows he completed 12 years, 7 months, and 13 days of creditable active service and had 5 years, 2 months, and 17 days of prior active service.

12.  Item 18 (Remarks) of this DD Form 214 does not show any service in a designated hazardous fire pay/imminent danger pay area.

13.  On 28 April 2008, and subsequent to a petition to this Board, his records were corrected to show he was honorably retired from active duty in the rank of CPT by reason of having completed 20 years of creditable active service.

14.  On 2 April 2008, the National Guard Bureau published Special Orders Number 86 AR withdrawing his Federal recognition effective 28 February 2003 by reason of being retired. 

15.  In the processing of this case, on 29 March 2010, an advisory opinion (AO) was obtained from the NGB, Chief, Personnel Division.  The advisory official recommended disapproval of the applicant's request for promotion based on the fact that he did not hold a position in the higher grade.  He was provided with a copy of this AO but he did not respond.

16.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states the total amount of foreign service completed during the period covered by the DD Form 214 is entered in Item 12f and is obtained from the Soldier’s records.  Additionally, for an active duty Soldier deployed with his or her unit during their continuous period of active service, the statement "Service in (Name of Country Deployed) from (inclusive dates for example, YYYYMMDD - YYYYMMDD)" will be entered in item 18 (Remarks).

17.  Army Regulation 135-155 provides policy for the selection and promotion of commissioned officers of the ARNG and USAR.  Paragraph 4-21(d) states that AGR officers selected by a mandatory board will be promoted provided they are assigned or attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status.  

18.  National Guard Regulation 600-100 (Federal Recognition and Related Personnel Actions) prescribes policies and procedures governing the appointment, assignment, temporary Federal Recognition, Federal Recognition, reassignments, transfers between States, branch details, utilization, attachments, and separation of commissioned officers of the ARNG.  Paragraph 4-3 (assignment policies) states the primary factor influencing an officer's assignment is the need of the ARNG.  Paragraph 4-3g (Grade) states that because the ARNG promotion system requires that all commissioned officers, unless specifically exempt, must be assigned to an authorized position, grade becomes a dominant factor in commissioned officer assignment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be promoted to MAJ and his DD Form 214 should be corrected to show his service in Korea.

2.  With respect to his Korea service:

	a.  The evidence of record shows he served in Korea from on or about 17 March 1982 to on or about 23 February 1983.  This period of foreign service is captured on his DD Form 214 for the period ending on 3 November 1986.  There is no provision in the regulation in effect at the time of his discharge or current version of the regulation to list the specific country of foreign service in item 12f.

	b.  The regulation states that for an active duty Soldier deployed with his or her unit during their continuous period of active service, a statement of the country of deployment (locations authorized HFP/IDP) and inclusive dates is listed in the remarks block of the DD Form 214.  Korea is not designated a HFP/IDP area.  Therefore, there is no provision to list it on the DD Form 214.

3.  With respect to his promotion:

	a.  The evidence of record shows subsequent to the issuance of his promotion memorandum, he held a CPT position in several units while in an AGR status, either as a battalion S-1, assistant S-3, or plans officer.  He never held a MAJ position.

	b.  By regulation, his promotion would have been accomplished if he held a vacancy in the higher grade of his unit and remained until Federal recognition orders were published.  He did not do so.  Therefore, he is ineligible for promotion to MAJ.

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)                                         AR20090015619



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ABCMR Record of Proceedings (cont)                                         AR20090015619



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