BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090021582 


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, through his Member of Congress, promotion to lieutenant colonel (LTC). 

2.  The applicant states that he was passed over for promotion to LTC because his official military record was incomplete.  Due to many changes that occurred at the end of his second tour in Vietnam (1971-1972), a recommendation for award of the Bronze Star Medal was lost.  However, this injustice was recently corrected and he was issued a second award of the Bronze Star Medal.  He believes he would have been selected for promotion if his military records had contained this medal at the time he was considered for promotion and he would have been allowed to remain on active duty.

3.  The applicant provides a copy of a letter, dated 5 October 2009, from the U.S. Army Human Resources Command (USAHRC); a copy of a certificate awarding him the Bronze Star Medal (1st Oak Leaf Cluster); and a copy of a letter, dated 2 November 2009, from his daughter to a Member of Congress.

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 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.  Having had prior enlisted service, the applicant's records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) and executed an oath of office on 10 January 1964.  

3.  He subsequently entered active duty on 22 February 1964, completed several training courses, and held primary specialty 35 (Tactical Strategic Intelligence).  He also served in various staff positions within and outside the Continental United States, including two tours in Vietnam, and two tours in Panama.  He was promoted in the Army of the United States (AUS) to first lieutenant (1LT) on 22 August 1965 and to captain (CPT) on 22 November 1966.

4.  On 18 June 1973, Headquarters, Department of the Army Special Orders Number 17 announced his promotion to major (MAJ) in the AUS with an effective date and date of rank of 27 June 1973.

5.  On 19 March 1981, subsequent to having been issued a mandatory release date from active duty, by memorandum, he voluntarily requested retirement from the Army.  His request was subsequently endorsed by his chain of command and it was ultimately approved by the Department of the Army.

6.  He was honorably retired from active duty on 28 February 1982 and he was placed on the retired list in his retired rank of MAJ on 1 March 1982.  His 
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with completing 20 years and 12 days of creditable active service.

7.  On 5 October 2009, the USAHRC Army Decorations Board approved an award of the Bronze Star Medal (1st Oak Leaf Cluster) for the applicant for service for the period 14 September 1971 to 15 July 1972.  

8.  He submitted a copy of a letter, dated 22 November 2009, from his daughter to a Member of Congress wherein she states that she and her father, the applicant, believe it would have made a difference.  The applicant would have been promoted to LTC if the Bronze Star Medal had been timely processed.

9.  Army Regulation 624-100 (Promotions of Officers on Active Duty), in effect at the time, prescribed the policies and procedures for promotion of commissioned officers on the active duty list.  It states:

	a.  Commissioned officers were recommended for promotion by their commanders, and were selected by centralize (service-wide) promotion boards, who made promotion determinations based upon the officers' promotion records. There are basically three promotion opportunities Below-the-Zone, In-the Zone, and Above-the-Zone.  Most promotions occur In-the-Zone.  Those not selected In-the-Zone have one more chance, a year later -- Above-the-Zone (the selection rate for Above-the-Zone is extremely small -- around 3 percent).  The two most significant factors in an officer's promotion records are inarguably their fitness report(s) and level of responsibility in their current and past assignments.  An average fitness report can result in being "passed over."  Lack of current or previous assignments that had significant degrees of responsibility can also result in not being selected.  

	b.  Special Selection Boards (SSB) are convened to consider commissioned officers for promotion when Headquarters, Department of the Army discovers that an officer was not considered from in or above the promotion zone by a regularly scheduled board due to an administrative error; or when the action by a board which considered an officer in or above the promotion zone was contrary to law or involved a material error; or the board which considered an officer from in or above the promotion zone did not have before it for consideration some material information.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  

	c.  An officer will not be considered or reconsidered for promotion by a SSB when an administrative error was immaterial or the officer, exercising reasonable diligence, could have discovered and corrected the error in his/her official records.  An officer will also not be considered or reconsidered for promotion by a SSB when letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be promoted to LTC.

2.  Each board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints.  The Secretary of the Army, in his Memorandum of Instruction, establishes limits on 

the number of officers to be selected.  The selection process is an extremely competitive process based on the "whole officer" concept.  It is an unavoidable fact that some officers considered for promotion will not be selected.  There are always more outstanding officers who are fully qualified to perform duty at the next higher grade, but who are not selected because of selection capability restrictions.

3.  It is unfortunate that the applicant was not selected for promotion to LTC while he was on active duty; however, it is a well known fact that not everyone who is eligible for promotion during a given selection board is selected, because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.  This is especially so during times of drawdown, such as the early 1970s, after Vietnam, the period during which the applicant was awarded the Bronze Star Medal in question.

4.  His contention that the lack of award of a Bronze Star Medal may have served as the basis for his non-selection is speculative at best.  It is a well known fact that promotion boards do not reveal the basis for selection or non-selection.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant it must be presumed that what the board did was correct.  In addition, by regulation a missing award below the Silver Star is not a basis for promotion reconsideration.

5.  Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for the board's recommendations are not known.  A non-selected officer can only conclude that a promotion selection board determined that his overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

6.  In view of the facts of this case, there is an insufficient evidentiary basis to support the applicant’s promotion or reconsideration by an SSB.  

7.  There is no evidence to support that the inclusion of a second Bronze Star Medal in the applicant's file would have resulted in his selection for promotion to LTC. 


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)                                         AR20090021582



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ABCMR Record of Proceedings (cont)                                         AR20090021582



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