IN THE CASE OF:	  

		BOARD DATE:	    10 November 2010

		DOCKET NUMBER:  AR20100008896 


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 captain (CPT) while in the Individual Ready Reserve (IRR).

2.  The applicant states, in effect, when he was released from active duty in 1993, his records were not properly updated to reflect his promotion to first lieutenant (1LT).  He was transferred to the U.S. Army Reserve (USAR) Control Group (IRR) in the grade of second lieutenant (2LT).  He later submitted an appeal to the Army Board for Correction of Military Records (ABCMR) that resulted in a favorable decision and his records were subsequently corrected to show he was released from active duty as a 1LT.  His transfer to the IRR in the erroneous grade resulted in him not being considered for promotion to CPT with his contemporaries.  He is currently in the process of applying for appointment in the USAR and assignment to a troop program unit.  He feels if he had been promoted properly and timely to 1LT, he would have been promoted to CPT. 

3.  The applicant provides a copy of:

* his Officer Record Brief (ORB), dated March 1992
* Orders 10-3-4-76, dated 26 January 1991
* his DA Form 78 (Recommendation for Promotion of Officer), dated
10 November 1992
* his DA Form 1506 (Statement of Service), dated 7 February 1991
* 
his DA Forms 67-8 (U.S. Army Officer Evaluation Report (OER)) for the period 11 July 1991 through 23 June 1992 and 24 June 1992 through 3 December 1992
* Headquarters, Department of the Army (HQDA) message, date time group (DTG) 101424Z Dec 92, Subject:  REFRAD-VERRP [Release from Active Duty - Voluntary Early Release/Retirement Program]
* his DA Form 71 (Oath of Office - Military Personnel), dated 7 February 1991
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the period ending 6 February 1991 and 15 March 1993
* a DD Form 215 (Correction to DD Form 214), dated 20 November 2006
* his DA Form 873 (Certificate of Clearance and/or Security Determination), dated 15 August 1991
* his DA Form 2B (Personnel Qualification Record), prepared on
11 December 1991
* his appointment memorandum, dated 7 February 1991

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.  Having had prior enlisted service, the applicant's records show he was appointed as a 2LT in the Military Police (MP) Corps of the USAR and he executed a DA Form 71 on 7 February 1991 with concurrent order to active duty.  He was assigned as an MP platoon leader to the 411th MP Company, Fort Hood, TX. 

3.  He submitted a DA Form 78, dated 10 November 1992, prepared by the Commander, 546th Personnel Service Center, Fort Hood, TX, and addressed to his immediate commander, essentially requesting the immediate commander take action regarding the applicant's promotion from 2LT to 1LT.  This form shows the following entries:

* His immediate commander recommended approval of his promotion
* His battalion commander approved the recommendation for promotion 

4.  It appears his promotion recommendation to 1LT was not processed as he was REFRAD in the rank of 2LT

5.  The complete facts and circumstances surrounding his REFRAD are not available for review with this case; however, it appears at some stage, he requested voluntary REFRAD under the Fiscal Year (FY) 93 VERRP.

6.  On 10 December 1992, by message, HQDA announced approval of his request for REFRAD with a release date of 15 March 1992 contingent upon completion of his statutory military service obligation in the USAR.

7.  He was honorably released from active duty on 15 March 1993 in the rank of 2LT and he was transferred to the USAR Control Group (Annual Training) for completion of his remaining service obligation.  The DD Form 214 he was issued shows he completed 2 years, 1 month, and 9 days of net active service this period for a total of 9 years, 10 months, and 12 of active service.

8.  There is no indication he participated in any unit training sessions from 1993 until he was honorably discharged from the USAR on 30 December 1999.

9.  On 23 August 2005, he petitioned the ABCMR for correction of his DD Form 214 to show he was promoted to 1LT.  The Board approved his request and on 20 November 2006, he was issued a DD Form 215 that corrected his rank from 2LT to 1LT with an effective date of 7 February 1993.

10.  He submitted a copy of his DA Form 873 as well as two DA Forms 67-8 as follows:

* A senior rater option OER, for the period 11 July 1991 through 23 June 1992, for his duties as a platoon leader
* A change of rater OER, for the period 24 June 1992 through 3 December 1992, also for his duties as a platoon leader

11.  On 20 September 2010, an advisory opinion was obtained from the Chief, DA Promotions, U.S. Army Human Resources Command, St. Louis, MO.  The advisory official recommended disapproval of the applicant's request and stated that with a date of rank of 7 February 1993, the applicant was in the zone of consideration for promotion consideration to CPT by the 1996 through 1998 DA 

Reserve Components Selection Boards (RCSB).  However, due to the applicant's lack of diligence to request corrective action in a timely manner, he was not considered by the boards.  He has not performed any military service since his REFRAD in 1993.  Therefore, the DA Special Selection Board (SSB) would not have any documents to evaluate his potential to perform at a higher graded position.

12.  The advisory opinion was furnished to the applicant on 13 October 2010 to allow him the opportunity to submit comments or a rebuttal.  In his response, dated 21 October 2010, the applicant stated if his records reflected the rank of 1LT, he would have been promoted to CPT.  He agrees that he did not act in due diligence; however, he was unaware his records did not reflect the grade of 1LT. If he had known, he would have requested the correction earlier.  He further states his service and evaluations attest to the fact that nothing would have prevented him from being promoted to CPT while on active duty or in the IRR.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officer) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration 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. 

14.  The regulation, in effect at the time, provides that in order to be qualified for promotion to CPT, an individual must have completed 4 years of time in grade as a 1LT, and an officer basic course, and a baccalaureate degree on or before the convening date of the respective promotion board.

15.  Paragraph 3-19f(2) of Army Regulation 135-155 states the Commander, Human Resources Command, Office of Promotions 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 personnel file; or when the officer could have taken timely corrective action such as notifying the Office of Promotions of the error and provided any relevant documentation that he or she had. 

16.  The doctrine of laches is defined by Black's Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty in an officer status from February 1991 through March 1993.  His DD Form 214 for this period reflected his grade as a 2LT.  He was ultimately discharged from the USAR in December 1999.  No action was taken by him until 2005 when he requested to correct this DD Form 214 to show the grade of 1LT and an effective date of 7 February 1993.  Based on his corrected date of rank he would have been eligible for consideration by a mandatory board for promotion to CPT by the 1997 through 1998 RCSBs.

2.  However, officers are largely responsible for their own careers.  He could have initiated more frequent contacts with his branch manager or officials at the U.S. Army Human Resources Command.  An officer exercising due diligence concerning his/her career knows when he/she is eligible for promotion consideration and is on the lookout for when a promotion board is to be held.

3.  It is not reasonable to believe that the applicant was unaware his records did not reflect the rank of 1LT.  His DD Form 214 showed his rank as 2LT.  Common sense would tell one that this rank probably carried over into his USAR service.

4.  The OERs he submitted are noted; however, he did not perform any training or participate in any drills from 1993 to 1999.  He has no OERs or any other documentation to evaluate his potential to perform at a higher graded position. He would have been seen by promotion boards during a period of drawdown, when promotions were highly competitive and his particular promotion would have been far from a certainty.  Had he applied to the ABCMR in a timely manner, an equitable decision could possibly have been made in his case. However, he has been separated from the service for over 10 years; therefore, the doctrine of laches is invoked in his case.

4.  The applicant needed to ensure, well in advance, that his record would present his career and qualifications to promotion boards in the best possible light.  It appears he failed to do so within the time required through his own volition.  In view of the foregoing, he is not entitled to the requested relief.


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)                                         AR20100008896



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)