IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20090021626 


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 the rank of colonel.

2.  The applicant states that he was eligible for consideration for promotion to the rank of colonel by the 1967 Reserve Component Colonel/O-6 Promotion Selection Board; however, the Board failed to act because of missing records and before the next board met he had reached retirement age and lost the promotion he had earned.  He goes on to state that he did not choose to pursue the matter but now at the age of 94 it seems worth asking about.  He further states that he is a World War II veteran with 34 honorable years of service who was denied his last promotion due to an Army administrative error.

3.  The applicant provides a list of enclosures identifying six enclosures with his 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 was born on 20 December 1915 and on 3 May 1967, while serving as a United States Army Reserve (USAR) lieutenant colonel (LTC), the applicant dispatched a letter to the United States Army Administration Center in St. Louis, Missouri inquiring as to why he had not been advised if he was being considered for promotion to the rank of colonel, as other members of his unit had been advised. 

3.  On 24 May 1967, officials at the Army Administration Center advised the applicant that he was eligible for consideration; however, due to an administrative error his records were not submitted to the Board.  However, his records were being screened for submission to a standby board and it was discovered that his records were incomplete in that they did not contain documentation of his participation for retirement years ending in 1961, 1962 and 1966, which were necessary before the records could be submitted to the Standby Advisory Board (STAB).  The results of the STAB are not present in the available records.

4.  On 16 January 1968, the applicant was notified that his records were being reviewed to determine his eligibility for promotion to the rank of colonel and he was invited to submit a written communication inviting attention to his records concerning himself that he felt it was important in the consideration of his records.

5.  On 17 June 1968, the commander of the United States Army Administration Center dispatched a letter to the applicant informing him that he had been considered for promotion to the rank of colonel and the board did not recommend him for promotion at that time.  He was also advised that the non-selection did not constitute a passover for promotion and would have no bearing on his Reserve status or eligibility for future consideration for promotion.

6.  On 14 April 1969 a Notification of Eligibility for Retired Pay at Age 60 (20 Year letter) was dispatched to the applicant.

7.  On 23 April 1969, the applicant was notified that he had completed the maximum years of commissioned service authorized by law and that he must either request transfer to the Retired Reserve or be discharged.  On 1 May 1969, the applicant elected to be transferred to the Retired Reserve.

8.  On 20 December 1975, when the applicant turned age 60, he was transferred to the Army of the United States (AUS) Retired List in the rank of LTC.  He was credited with 21 years, 2 months and 24 days of qualifying service for Retired Pay purposes and 34 years, 8 months and 13 days of service for longevity pay purposes. 

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) provides policy and procedures for the selection and promotion of commissioned officers of the National Guard of the United States and the USAR.  It provides, in pertinent part, that Standby Advisory Boards are formed to prevent any injustices to an officer or former officers who were eligible for promotion but whose records through error, were not submitted to a promotion selection board for consideration or contained a material error when reviewed by the selection board.  STABs are normally convened approximately 6 months after the original board. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was not considered for promotion to the rank of colonel and was thus denied a promotion he had earned before he reached his mandatory release date (MRD) has been noted.

2.  The 24 May 1967 letter provided by the applicant with his application clearly indicates that his records were being placed before a STAB.  While the results of that consideration are not present in the available records, the notification dispatched to the applicant on 16 January 1968 informing him that he was being considered by the 1968 board and the 17 June 1968 notification informing him that he had not been selected for promotion by that board constitutes a reasonable presumption that he was also not selected by the STAB in 1967.

3.  In any event, there is sufficient evidence in the available records to show that he was properly considered for promotion prior to his MRD and unfortunately was not selected for promotion to the rank of colonel.  Accordingly, there appears to be no basis to grant his request.

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 the aforementioned requirement.







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 during World War II.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   __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)                                         AR20090021626





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ABCMR Record of Proceedings (cont)                                         AR20090021626



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