IN THE CASE OF:
BOARD DATE: 25 January 2011
DOCKET NUMBER: AR20100016382
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 military records to show he was placed on the Retired List in the rank of brigadier general (BG).
2. The applicant states he was "recommended for selection to BG by the 1995 U.S. Army Reserve (USAR) General Officer Assignment Eligibility Board (GOAEB)." He competed in the 1996 USAR General Officer Assignment Selection Board (GOASB), but he was not selected. He was not permitted to compete in any subsequent GOASB's and elected to retire. His Retired Reserve date is 1 May 1998 and his Army of the United States retired date is 20 June 2002.
3. The applicant provides copies of a letter from the Chief, Army Reserve, dated 30 January 1996, and an undated letter from the Deputy Assistant Secretary of Defense for Materiel and Facilities.
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 available evidence of record shows the applicant:
a. served on active duty as an enlisted member from 14 June 1966 to 13 June 1967;
b. was appointed as a commissioned officer in the USAR on 25 July 1967;
c. was promoted to colonel (COL)/pay grade O-6 on 27 April 1993;
d. was transferred to the Retired Reserve on 2 May 1998; and
e. was placed on the Retired List in the rank of COL effective 20 June 2002, the date he attained 60 years of age.
3. In processing this case, an advisory opinion was obtained from the Chief, Transition and Separations, U.S. Army Human Resources Command, St. Louis, Missouri. The opinion states:
a. the applicant requests his retired rank be changed to reflect the honorary rank of BG for purposes of correspondence;
b. the applicant was not selected by a general officer promotion board and therefore never held the rank of BG/pay grade O-7;
c. Title 10, U.S. Code, section 1370, requires an officer in the grade of O-5 and above to hold such rank for a minimum of 3 years in order to retire in that pay grade; and
d. the applicant's request should be denied.
4. A letter from the Chief, Army Reserve, dated 30 January 1996, congratulates the applicant on his selection to compete for USAR general officer assignment. It informed the applicant that his candidacy file would be provided to the January 1996 GOASB for assignment consideration. The letter does not state he had been so selected.
5. An undated letter from the Deputy Assistant Secretary of Defense for Materiel and Facilities addressed to this Board provided by the applicant states its purpose is to support the applicant's request for elevation on the Retired List to the rank of BG, USAR, without compensation. The letter states the author has known the applicant for the past 26 years. The applicant has always been an outstanding officer, Soldier, and patriot. The applicant has always lived the Army values, even before we realized and defined what the Army values were. He contends that after 41 years of service, including 13 years as a general officer, he has yet to work with anyone as deserving as the applicant to be a general officer. He strongly supports the applicant's request.
6. Title 10, U.S. Code, provides:
a. Section 3961b states that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by subsection (a) who retires other than for physical disability retires in the Regular or Reserve grade that he holds on the date of his retirement.
b. Section 3962 states that upon retirement, any permanent professor of the U.S. Military Academy whose grade is below brigadier general and whose service as such a professor has been long and distinguished may, in the discretion of the President, be retired in the grade of brigadier general.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military records should be corrected to show he was placed on the Retired List in the rank of BG without compensation.
2. The evidence of record clearly shows the applicant was promoted to COL/pay grade O-6 and was subsequently placed on the Retired List in that grade.
3. There is no evidence showing the applicant was ever selected for or promoted to BG/pay grade O-7; or had served as a professor of the U.S. Military Academy.
4. There is no available evidence of error or injustice.
5. In view of the above, 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 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) AR20100016382
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ABCMR Record of Proceedings (cont) AR20100016382
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