BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100014244 


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, in effect, reconsideration for promotion to colonel (COL)/O-6.

2.  The applicant states that just prior to his retirement from the U.S. Army, the promotion board was scheduled to consider him for promotion to COL.  However, due to an unfortunate postponement of the promotion board he was denied the rank of COL for which he was qualified.

3.  The applicant provides:

* a copy of an Optional Form 41 (Routing and Transmittal Slip), dated 23 May 1985
* a memorandum from the Chief, Special Actions Branch, Department of the Army (DA) Promotions, U.S. Army Human Resources Command (HRC), St. Louis, MO, dated 17 March 2009
* copies of two DA Forms 67 (U.S. Army Officer Evaluation Report (OER))

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.  His service records show he was born on 27 January 1934 and he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 13 May 1968 having had prior enlisted service.  He was promoted to lieutenant colonel (LTC) on 13 August 1981.

3.  He submitted his OER's for the following periods:

* 8 July 1985 through 19 July 1985
* 7 July 1986 through 18 July 1986

4.  He submitted a Routing and Transmittal Slip, dated 23 May 1985, which shows he was to be considered by the COL USAR promotion board that convened from 9 October through 15 November 1985.

5.  His record contains a memorandum from the USAR Personnel Center (ARPERCEN, later known as HRC)-St. Louis), dated 30 January 1986, which states he was considered for promotion to the grade of COL but was not recommended for promotion during the board that convened in October 1985.

6.  His record contains a memorandum from ARPERCEN, dated 27 October 1986, subject:  Attainment of Maximum Service in the Active or Inactive Reserve, which states he had completed the maximum amount of service for a member of the USAR and as a result was given a mandatory removal date of 26 February 1987.

7.  Orders C-12-923837 issued by ARPERCEN, dated 11 December 1986, show he was relieved from the USAR Control Group (Mobilization) due to the completion of the maximum authorized years of service and assigned to the USAR Control Group (Retired) effective 25 February 1987.

8.  He submitted a memorandum from the Chief, Special Actions Branch, DA Promotions, HRC-St. Louis, dated 17 March 2009, which states that his record was considered but not selected during the 1985 and 1986 COL DA Army Reserve Components Selection Boards (RCSB) and the data base showed he was educationally qualified at the time.  The reasons for non-selection were unknown because board deliberations are not a matter of record.  The memorandum also states that the Soldier Management System data base reflected he was placed in the Retired Reserve in February 1987 which was prior to the 1987 COL board; therefore, he was were not considered by the board due to maximum authorized years of service.

9.  A representative from HRC, Special Actions Branch, DA Promotions, confirmed the 1986 COL RCSB convened on 15 October and recessed on 14 November 1986.

10.  Title 10, U.S. Code, section 14507 (Removal from the Reserve Active Status List for Years of Service:  Reserve LTC's and COL's of the Army, Air Force, and Marine Corps and Reserve Commanders and Captains of the Navy), states that a commissioned officer who holds the grade of LTC and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the Reserve Active Status List) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of commissioned service.

11.  Title 10, U.S. Code, section 14308(a) (Promotion List), states that when the report of a selection board convened under section 14101(a) or section 14502 of this title is approved by the President, the Secretary of the Military Department concerned shall place the names of all officers selected for promotion within a competitive category on a single list for that competitive category, to be known as a promotion list, in the order of seniority of those officers on the Reserve Active Status List.  When so approved, such a list shall be treated in the same manner as a promotion list under this chapter and chapter 1403 of this title.

12.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  It also defines Ready Reserve Control Groups and the Selected Reserve, provides detailed procedures for removing Soldiers from an active status, and gives procedures for selective retention of unit Soldiers.  Chapter 7 (Removal from Active Status) provides guidance for the removal of commissioned officers for maximum age and/or length of service.  Paragraph 7-2 (Length of Service) provides that LTC's will be removed upon completion of 28 years of commissioned service if under age 25 at initial appointment.  The actual removal date will be within 30 days after the date of completion of the maximum years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the promotion board's postponement in 1986 resulted in his being denied the promotion opportunity for COL was considered and found to be without merit.

2.  DA Promotions confirms the 1986 COL RCSB convened on 15 October 1986 and further evidence shows he was considered but not selected for promotion to COL by both the 1985 and the 1986 COL RCSB.  He reached his mandatory removal date in February 1987 and, therefore, was not eligible for consideration for promotion by the 1987 COL RCSB which was not scheduled to convene until October 1987, after the date of his transfer to the Retired Reserve.

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 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)                                         AR20100014244



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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