IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20090021716 


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 lieutenant colonel (LTC/O-5) with an effective date of 15 January 1990.

2.  The applicant states, in effect, that:

a. the Army Board for Correction of Military Records (ABCMR) acted to
correct his major (MAJ/O-4) date of rank (DOR) to 15 January 1983; however it did not take effect until 13 March 1992, the date he retired;

b. an error occurred when the correction of his MAJ DOR was delayed;

c. now that he entered the retired list, he believes there is a basis to legally
assert that he should have been promoted to LTC on 15 January 1990; and

d. he is not seeking any back pay.

3.  The applicant provides a self-authored statement.

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 record shows he was appointed a Reserve commissioned officer in the rank of second lieutenant (2LT/O-1) in the United States Army Reserve (USAR) on 14 May 1971.  He was trained in and served in area of concentration (AOC) 77A (Tank and Ground Mobility Materiel Management Officer).

3.  He was promoted to first lieutenant (1LT/O-1) on 16 January 1974 and to captain (CPT/O-3) on 16 January 1977.

4.  On 5 December 1988, the Chief, Reserve Officer Branch, Headquarters, Sixth United States Army and Presidio of San Francisco, Presidio of San Francisco, California, notified the applicant that he was promoted to MAJ with an effective date of 15 January 1983.

5.  On 26 December 1991, the applicant voluntarily requested transfer to the Retired Reserve effective 25 January 1992.

6.  Headquarters, Sixth United States Army and Presidio of San Francisco, Presidio of San Francisco, California, published Orders Number 026-053 dated 13 March 1992, which directed the applicant’s release from his USAR unit by reason of voluntary retirement.  It also shows that he held the rank of MAJ and that he was assigned to the Retired Reserve on 13 March 1992.

7.  The applicant’s military record contains a DD Form 149 (Application for Correction of Military Records) dated 14 January 1992, which shows he requested removal of an Officer Evaluation Report (OER) from his military record.  On 20 April 1994, the Executive Secretary, ABCMR, responded to the applicant by letter, informing him of his requirement to exhaust all administrative remedies available to him prior to submitting his request to this Board.  The applicant’s military record contains no other evidence of appeals from the applicant to the ABCMR.

8.  During the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, DA Promotions, United States Army Human Resources Command (AHRC).  That office stated that:

a.   the Reserve Database System reflects that the applicant’s MAJ DOR is
15 January 1983;

b. the applicant was removed by the 1990 LTC, Army Promotion List (APL),
Reserve Component Selection Board (RCSB), for not being in the zone of consideration based on his previous DOR of 13 May 1985;

c. the applicant was also considered but not selected by the 1991 LTC APL
RCSB and, because board deliberations are not a matter of record, the reason for his non-selection is unknown; and

d. since the applicant retired on 13 March 1992, he was not considered by
the 1992 LTC APL RCSB.

9.  On 25 June 2010, the applicant provided his comments to the advisory opinion stating:

   a. the advisory opinion was not entirely unfavorable in that it confirmed his MAJ DOR is 15 January 1983;

b. the error made in removing him from the 1990 LTC APL RCSB caused his
career a severe injustice and placed him in an unfair and false light before the 1991 LTC APL RCSB;

c. in view of the totality of circumstances in his case, there is good cause to
promote him to LTC to avoid an intolerable injustice; and

d. if his case cannot be favorably resolved, he requests an additional 90
days to research the 1990 promotion criteria in order to justify promotion to LTC.

10.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  This regulation specifies that the Secretary of the Army (SA) or his or her designee will establish the zone of consideration for each mandatory promotion board for commissioned officers.  If an officer is determined to be ineligible for consideration by not being in the zone of consideration, the Commander, Office of Promotions, Reserve Components, will verify the officer's ineligibility, explain the basis for the officer's ineligibility to the SA, and advise the SA to request that the President approve removal or administrative deletion of the office's name for the promotion board report or promotion list.  Officers erroneously considered and selected for promotion and deleted from the recommended list will not be considered to have failed selection for promotion.

11.  Army Regulation 135-155, Chapter 3 specifies that promotion reconsideration by a special selection board may only be based on erroneous nonconsideration or material error, which existed in the records at the time of consideration.  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.

12.  Paragraph 3-19f(2) of Army Regulation 135-155 states that the Commander, AHRC, Office of Promotions (Reserve Component) will normally not determine that a material error existed when an administrative error was immaterial, or, the officer in exercising reasonable diligence, could have discovered and corrected the error or omission in the Official Military Personnel File or if the officer could have taken timely corrective action such as notifying the Office of Promotions (RC) of the error and providing any relevant documentation that he/she had.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his record should be corrected to show he was promoted to LTC with an effective date of 15 January 1990.

2.  The evidence of record confirms the applicant’s name was removed from the 1990 LTC APL RCSB based on a previous MAJ DOR of 13 May 1985, which incorrectly indicated he was not in the zone for consideration and therefore ineligible for promotion.  The applicant contends this error caused his career a severe injustice and placed him in an unfair and false light by the subsequent 1991 LTC APL RCSB.

3.  By regulation, the Commander, AHRC, Office of Promotions (RC), will normally not determine that a material error existed when an administrative error was immaterial, or, the officer in exercising reasonable diligence could have discovered and corrected the error or omission in the Official Military Personnel File or if the officer could have taken timely corrective action such as notifying the Office of Promotions (RC) of the error and providing any relevant documentation that he had.

4.  The evidence of record confirms that the applicant was promoted to MAJ with a DOR of 15 January 1983, in official orders dated 5 December 1988.  Although the applicant’s MAJ DOR was mistakenly documented during the 1990 LTC RCSB, causing him to be removed from that list, the applicant being ultimately responsible for his career, in appealing this error now in 2010, more than 
20 years later, did not exercise reasonable diligence at that time to allow the appropriate authorities to correct the error, at that time.  Accordingly, the applicant’s request should be denied.

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)                                         AR20090021716



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ABCMR Record of Proceedings (cont)                                         AR20090021716



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