BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20100015411 


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 correction of his records as follows:

	a.  proper and timely consideration for promotion from second lieutenant (2LT) to first lieutenant (1LT); and subsequent adjustment of his date of rank (DOR) to captain (CPT), major (MAJ), and lieutenant colonel (LTC);

	b.  consideration for promotion to colonel (COL) based on his adjusted DOR's; and

   c.  in effect, reconsideration of his earlier request for adjustment of his mandatory removal date (MRD).

2.  The applicant states that his promotion to 1LT was improperly denied upon attainment of eligibility for promotion in 1984 and was ultimately delayed until 1988.  He further states:

	a.  Upon successful completion of the officer basic course in 1982, he travelled overseas to complete advanced civilian education.  Prior to his departure, he notified officials at the U.S. Army Human Resources Command-St. Louis (HRC-STL) of his plans and he was accordingly assigned to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR)).  However, he contacted HRC-STL officials upon his return to obtain a transfer to a troop program unit (TPU), but learned that during his year overseas he had been improperly assigned to a TPU and to a technical position for which he was not even qualified.  This administrative error led to an administrative separation board which ultimately ruled in his favor and directed his retention in the USAR.

	b.  Nevertheless, during the period from 1984 to 1988, he was improperly denied due consideration for promotion to 1LT.  He fought to remain in the Army as an officer, but he was denied the opportunity to train, drill, or contribute.  His leaders failed to document or justify denying his promotion.  He then submitted a request for correction of his military records through HRC-STL, but was directed to apply to this Board.  He continued his service until he retired in 2009.

	c.  The improper denial of promotion in 1984 delayed his consideration for every subsequent promotion.  By his calculation, he was denied consideration for promotion to COL no fewer than two times.  The previous Board's decision with respect to reconsideration of his earlier request to correct his MRD failed to adequately consider the relationship between the promotion delay/denial from 1984 to 1988 and the loss of opportunity for promotion consideration to COL.

3.  The applicant provides the following documentary evidence:

* self-authored promotion date comparison sheet, dated 21 May 2010
* DD Form 149 (Application for Correction of Military Records), dated 9 June 1988
* DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 17 February 1988
* memorandum, dated 5 February 1988, subject:  Involuntary Separation Action
* memorandum for record, dated 10 June 1988, concerning an appeal of his Officer Evaluation Report (OER)
* Orders 6-3, dated 29 April 1981
* DA Form 71 (Oath of Office - Military Personnel), dated 10 May 1981
* appointment memorandum, dated 10 May 1981
* promotion to 1LT, CPT, and MAJ memoranda and his LTC promotion orders

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) regarding adjustment of his MRD in Docket Number AR20090005577 on 4 August 2009 and Docket Number 
AR20090017734 on 9 March 2010.

2.  The applicant did not specifically request reconsideration of his earlier request for adjustment of his MRD; he requested adjustment of his date of eligibility for promotion to 1LT and subsequent promotions to CPT, MAJ, and LTC, and eligibility for promotion to COL which would have adjusted his MRD.  He argues that the Board's decision with respect to reconsideration of his earlier request to correct his MRD failed to adequately consider the relationship between the promotion delay/denial from 1984 to 1988.  This is a new argument which was not previously considered; therefore, it is considered new evidence and, as such, warrants consideration by the Board.

3.  The applicant's service records show he was born on 13 October 1960 and enlisted in the USAR for a period of 6 years on 13 June 1978. 

4.  On or about 1 December 1979, he entered into a Reserve Officers' Training Corps (ROTC) Program at Northwestern University, Boston, MA. 

5.  On 3 April 1981, subsequent to an application for appointment as a commissioned officer in the USAR, Headquarters, First ROTC Region, Fort Bragg, NC, published Orders 68-1 releasing him from the ROTC Control Group with assignment to the 364th Military Intelligence (MI) Company, Hanscom Air Force Base, MA, effective 10 May 1981.

6.  On 10 May 1981, he was appointed as a 2LT in the USAR and he executed an oath of office on the same date.  He subsequently entered active duty for training (ADT) on 26 May 1982 and completed the MI Officer Basic Course and the Tactical Intelligence Officer Course.  He was released from ADT on 29 October 1982 to the control of his USAR unit.

7.  On 22 December 1982, Headquarters, First ROTC Region, Fort Bragg, NC, published Orders 247-8, releasing him from the 364th MI Company and further reassigning him to the USAR Control Group (Annual Training) for the purpose of applying for an active duty tour.  The effective date is shown as 6 February 1983. 
However, there is no indication in his records that he applied for an active duty tour.

8.  On 2 November 1983, the U.S. Army Reserve Components Personnel and Administration Center (now known as HRC-STL) published Orders C-11-918412 releasing him from the USAR Control Group (Annual Training) and mandatorily reassigning him to a TPU, the 364th MI Company, Hanscom Air Force Base, MA, effective 1 December 1983.

9.  In December 1984, the applicant received an annual OER covering the rating period 1 December 1983 through 30 November 1984 for his duties as Missile Maintenance Officer with the 364th MI Company.

	a.  His rater, a MAJ and section chief, remarked that "he did not take the APFT [Army Physical Fitness Test] during this rating period; he has not shown the dedication necessary to get the job done; and he lacks the discipline required of a junior officer."  He further stated:

During this rating period, [Applicant] has not provided the type of leadership traits necessary for a junior officer.  His attendance has been poor and his willingness to accept responsibility has been lacking.  He failed to attend annual training during FY84 [Fiscal Year 1984] and missed the unit FTX [field training exercise] during September 1984 at New Boston Tracking Station, NH.

	b.  his senior rater, a CPT and company commander, rated him in the bottom of his senior rater profile and remarked, in pertinent part:

[Applicant] was assigned to this unit in December 1983 and although he was notified by mail by this unit 3 times, he did not report until June 1984.  Since then his attendance of unit training assemblies has been unsatisfactory, and his duty performance has left much to be desired.  He did not attend annual training with this unit nor did he attend annual training of any of the alternate time offered to him, even though he was scheduled for one of them.

	c.  The applicant failed to sign his original OER sent to his home address on 2 February 1985 even though he signed the registered receipt.  Additionally, he failed to respond to his referred report.

10.  In December 1985, he received an annual OER covering the rating period 1 December 1984 through 30 November 1985 for the same duties as his previous OER.

	a.  His rater remarked "he did not take the APFT during this rating period; he failed to demonstrate the necessary dedication to accomplish the mission; and he lacks the essential discipline required of a commissioned officer."  He further stated:

During this rating period, [Applicant] has not provided the type of leadership traits necessary for a junior officer.  His attendance has been poor and his willingness to accept responsibility has been lacking.  He failed to attend annual training during FY85 and missed the unit FTX during September 1985 at New Boston Tracking Station, NH.

	b.  his senior rater rated him in the bottom of his senior rater profile and remarked, in pertinent part:

[Applicant] was assigned to this unit in December 1983.  His attendance during this time for unit training assemblies has been extremely poor.  He did not attend annual training and claims to have civilian employment responsibilities that outweigh his military obligations.  He wishes to be transferred to the IRR.  He fails to meet the discipline requirements necessary to be a leader.

	c.  The applicant failed to sign his original OER sent to his home address on 15 January 1986 even though he signed the registered receipt.  Additionally, he failed to respond to his referred report.

11.  On 1 May 1986, a DA Form 268 was initiated by his chain of command suspending any favorable personnel actions.  A copy of this flag is not available for review with this case.

12.  In December 1986, he received an annual OER covering the rating period 1 December 1985 through 30 November 1986 for the same duties as his previous OER.

	a.  His rater rated him a "5" in all 14 areas of professionalism (1 being a high degree and 5 being a low degree) and remarked "he did not take the APFT during this rating period; he failed to participate satisfactorily in Ready Reserve Training."  He further stated:

During this rating period, a report for suspension of favorable personnel actions was initiated on 1 May 1986 due to his failure to participate satisfactorily in Ready Reserve Training.

	b.  his senior rater rated him in the bottom of his senior rater profile and submitted similar remarks to those provided in the previous OER.

	c.  The applicant failed to sign his original OER sent to his home address on 26 January 1987 even though he signed the registered receipt.  Additionally, he failed to respond to his referred report.


13.  On 5 February 1988, HRC-STL notified him by memorandum that a board had recently convened to consider his involuntary separation from the USAR and that based on the board's findings (below), he was recommended for retention and assignment to the IRR.  The retention board recommended the following:

* he had previously completed basic combat and advanced individual training
* his records disclosed discrepancies concerning his assignment to his TPU
* there were inconsistencies concerning the handling of his participation and assignment
* he justified his absence and made legitimate efforts to have his absence excused
* he desired to remain in the Army and he was physically fit
* he should be retained and assigned to the IRR

14.  He was also notified that HRC-STL officials reviewed the Report of Board Proceedings and all other documentation related to this action.  His case had been officially decided in his favor and was therefore closed.  He would be retained in the USAR.

15.  On 17 February 1988, as a result of the finding to retain him, the flag was closed favorably.  The DA Form 268 indicates the flag was initiated on 1 May 1986.

16.  On 10 April 1988, he was promoted to 1LT.  On the same date, he was reassigned from his TPU, the 364th MI Company, to the USAR Control Group (Reinforcement) due to his employment conflict.

17.  On 9 June 1988, he initiated a DA Form 149 requesting credit for retirement points from 5 May 1984 to 10 April 1988 and an adjustment of his promotion to 1LT.  He stated that during the period in question, he was unable to train or participate or to be promoted.  With this application, he provided a memorandum for record, dated 10 June 1988, from another officer who stated that from May 1986 to June 1988 he personally knew the applicant was trying to train or participate, but he was prevented from doing so until First U.S. Army boarded him for separation.  Additionally, from 1985 to 1986 he did not attend drills because he was told that he was being processed out.

18.  There is no indication that his application was mailed to or received by the ABCMR or acted upon by this Board.

19.  On 22 February 1989, subsequent to a petition to the Department of the Army Special Review Board (SRB), the SRB ordered the OERs for the period 1 December 1983 through 30 November 1986 deleted.

20.  His Chronological Statement of Retirement Points shows his creditable service for the retirement year ending (RYE) dates as noted:

RYE Date	Inactive	Membership	Active 	Total
		Duty		Duty

12 June 1982	27	15	18	60
12 June 1983	00	15                      139               154
12 June 1984	00	15	00	00
12 June 1985	22	15	00	27
12 June 1986	00	15	00	15
12 June 1987	00	15	00	15
12 June 1988	00	15	12	27
12 June 1989	01	15	14	30
12 June 1990	00	15	00	15

21.  On 2 January 1991, he was ordered to active duty in support of Operation Desert Storm.  He was honorably released from active duty on 16 April 1991 to the control of the USAR Control Group (Reinforcement).

22.  On 9 April 1992, he was promoted to CPT.

23.  On 1 December 1997, he was released from the USAR, he was subsequently appointed as a CPT in the Massachusetts Army National Guard (MAARNG), and he executed an oath of office on the same date.  He was assigned to the 1st Battalion, 181st Infantry.

24.  On 15 January 1999, he resigned and he was subsequently honorably discharged from the MAARNG and transferred to the USAR Control Group (Reinforcement).  He was subsequently reassigned to the 325th MI Battalion, Devens, MA.

25.  On 3 January 2000, he was promoted to MAJ and on 13 March 2006 he was promoted to LTC.

26.  On 24 August 2006, he received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

27.  On 29 June 2009, he was assigned to the Retired Reserve.
28.  On 24 August 2009, the Board denied his petition to correct his MRD from June 2009 to June 2013 by excluding the years 1984 through 1988 from his service.

29.  On 9 March 2010, the Board denied his request for reconsideration of his earlier request to correct his MRD by excluding the years 1984 through 1988 from his records.

30.  Army Regulation 135-155 (ARNG and USAR Promotion of Commissioned Officers and warrant Officers Other Than General Officers) prescribes policy and procedures to consider, select, and promote commissioned officers of the USAR and ARNG.

	a.  Paragraph 2-1, in effect at the time, stated a member of the USAR in the grade of 2LT would be considered for promotion without review by a selection board.  The member's records would be screened to determine eligibility for promotion to the next higher grade.  A member was qualified for promotion if he was in an active status, participating satisfactorily, and there were no grounds for removal from the service (substandard performance, unfitness, or unsuitability).

	b.  Paragraph 2-4, in effect at the time, stated to be eligible for promotion to the next higher grade, the USAR member must be in active status and meet the service requirements in Table 2-1.  This table stated that promotion from 2LT to 1LT required a minimum of 3 years time in grade in the lower grade.  Additionally, promotion to COL required a minimum of 3 years time in the lower grade and a maximum number of years that is determined annually by the Department of the Army, and was normally considered 5 years.

	c.  Paragraph 2-5, in effect at the time, stated to be eligible for selection, a USAR member who met eligibility requirements must be in an active status or participating satisfactorily in Reserve training.  For promotion purposes, satisfactory participation consisted of full compliance with all of the commander's instructions as well as meeting the education requirements.  Promotion was recognition of potential for service in the higher grade and was not a reward for past service.

	d.  Paragraph 4-7, in effect at the time, stated a member disqualified for promotion to 1LT who was retained in an active status may be promoted if subsequently determined to be qualified.  The promotion eligibility date would not be earlier than the date the member was determined qualified for promotion.

	e.  Paragraph 4-8, in effect at the time, stated a USAR member who was mandatorily considered and then selected would be transferred from the unit and promoted no later than 90 days after receipt of promotion notification or normal established procedures whichever was less (with some exceptions).

	f.  Paragraph 4-27, in effect at the time, stated non-selection for promotion to the next higher grade constituted a first pass-over to any grade other than 1LT and COL.  A member not qualified for promotion to the grade of 1LT would not again be considered for promotion unless retained in an active status.

	g.  Paragraph 4-28, in effect at the time, stated members of the USAR in the grade of 2LT were considered for promotion without board action.  If found not qualified for promotion to 1LT, a final determination concerning retention would be made by area commanders for unit members or commander, HRC, for all others.  The names would be reported to the commander concerned to determine if the member should be discharged or retained.  A non-selection letter would be sent to each member determined not qualified for promotion.  A member retained in an active Reserve status after being found not qualified for promotion to 1LT might be reconsidered for promotion if the reason for disqualification was resolved.  A member disqualified for promotion and later determined qualified, would be promoted.

31.  Army Regulation 140-10 (USAR Assignments, Attachments, Details, and Transfers) provides, with some exceptions, for the separation of MAJ's, LTC's, and COL's for maximum age and/or service.  It specifies that 1LT's, CPT's, MAJ's, and LTC's may not exceed 28 years of commissioned service if under age 25 at initial appointment.

32.  Army Regulation 600-31 (Suspension of Favorable Personnel Actions (Flag)), in effect at the time, prescribed procedures for suspending favorable personnel actions in the case of a member or prospective member of the U.S. Army while under investigation or implicated in matters of a derogatory nature.  It stated that a flag suspended favorable personnel actions such as promotions.  Immediate flagging action would be initiated in the case of a military member against whom action was initiated which might result in dismissal, discharge, courts-martial, disciplinary action, or elimination; or in the case of an officer whose commander had recommended removal of his name from a list of officers recommended for promotion.  Removal of the flag would be accomplished when the case was closed.

33.  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) provides, in pertinent part, that a commissioned officer who holds the rank 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.

34.  Army Regulation 140-10 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 inter-service transfer and selective retention of unit Soldiers.  Chapter 7 (Removal from Active Status) provides guidance, with some exceptions, for the removal of commissioned officers for maximum age and/or length of service.  Paragraph 7-2 (Length of Service) provides, in pertinent part, that 1LT's, CPT's, MAJ's, and 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.

35.  Title 10, U.S. Code, section 14502(b), states that in the case of an officer who was eligible for promotion and was considered for selection for promotion from in or above the promotion zone by a selection board but was not selected, the Secretary of the military department concerned may, under regulations prescribed by the Secretary of Defense, convene a special selection board (SSB) to determine whether the officer should be recommended for promotion, if the Secretary determines that the action of the selection board that considered the officer was contrary to law or involved material error of fact or material administrative error or the selection board did not have before it for its consideration material information.

36.  Army Regulation 135-155 specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record 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.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his promotion to 1LT was delayed which affected his subsequent promotions to CPT, MAJ, and LTC, and denied him promotion consideration to COL and a possible later MRD.

2.  The evidence of record shows he was appointed in the USAR on 10 May 1981 and he was assigned to a TPU, the 364th MI Company.  He subsequently completed the MI Officer Basic Course.  He was then released from his TPU on 6 February 1983 and he was reassigned to the USAR Control Group (Annual Training) for the purpose of applying for an active duty tour.  However, there is no indication in his records that he applied for an active duty tour.  His records further show HRC-STL released him from the USAR Control Group (Annual Training) and mandatorily reassigned him to a TPU, the 364th MI Company, on 1 December 1983.

3.  His records also show that, with the exception of attending some drills in 1985 and his annual membership points, he was an unsatisfactory participant from the date he was released from ADT (29 October 1982) to the date he was promoted to 1LT (June 1988).  During this period, he was not in compliance with all of the commander's instructions and failed to take his APFT.  This made him ineligible for promotion to 1LT.  

4.  His records further show, subsequent to an extensive history of substandard performance as evidenced by his several referred OER's, he was considered by a separation board to determine if he should be retained as a member of the USAR.  It appears he was flagged as a result of his nonparticipation.

5.  In February 1988, a separation board ruled in his favor and directed his retention in the USAR.  As soon as this decision was made, his flag was removed (17 February 1988) and he became eligible for and was subsequently promoted to 1LT on 10 April 1988.  This was done in full compliance with the applicable regulation in effect at the time.

6.  He subsequently petitioned the SRB for removal of his OER's.  The SRB ruled in his favor and determined that his OER's for the period 1 December 1983 to 30 November 1986 were to be deleted from his record and these rating periods declared nonrated.  However, this ruling did not change the fact that he was an unsatisfactory participant and failed to complete an APFT.

7.  He submits a DD Form 149, dated 9 June 1988, petitioning the ABCMR to grant him credit for nonregular retirement from 1984 to 1988 and correction of his DOR to 1LT.  There is no evidence this application was sent to or received by the ABCMR.  Furthermore, his claim for retirements point credit contradicts his later submission to adjust his MRD by removing the non-participatory years from 1984 to 1988.

8.  With respect to his active duty orders, there is no evidence that he went on active duty.  The period in question appears to coincide with the period he stated he was in civilian schooling in Europe.  If his orders were cut in error (i.e. should have said to attend school), this appears to be a harmless error.  Furthermore, if these orders were in error, he should have requested correction at the time. 

9.  Based on the foregoing, his promotion to 1LT and subsequent promotions to CPT, MAJ, and LTC, were proper and on time.  There is no reason to adjust any as there is neither an error nor an injustice.  

10.  With respect to promotion to COL, the evidence of record shows he was promoted to LTC on 13 March 2006.  He would have been eligible for consideration upon completing a minimum of 3 years in the lower grade (13 March 2009) or the maximum of 5 years in the lower grade (13 March 2011). 
However, the 2009 Reserve Components Selection Board convened on 3 August 2009 and he had been transferred to the Retired Reserve on 29 June 2009.  Therefore, he was never eligible for consideration.

11.  Having been born on 13 October 1960, appointed on 10 May 1981, and having reached the rank of LTC, by law which is applicable to all commissioned officers of the Armed Forces, officers in the rank of LTC or below shall be removed from the active Reserve and either discharged or transferred to the Retired Reserve at 28 years of commissioned service.  This was done.  No further action is required.

12.  With respect to consideration of his records by an SSB, promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration, which is not applicable in the applicant's case.  He was never considered for promotion to COL.  Therefore, he does not qualify for reconsideration for promotion by an SSB.








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, with respect to adjustment of his DOR to 1LT, CPT, MAJ, and LTC and promotion consideration to COL, are insufficient as a basis for correction of the records of the individual concerned.

2.  With respect to adjustment of his MRD, 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 to amend the decision of the ABCMR set forth in Docket Number AR20090005577, dated 4 August 2009, and Docket Number AR20090017734, dated 9 March 2010.



      ___________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)                                         AR20100015411



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ABCMR Record of Proceedings (cont)                                         AR20100015411



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