IN THE CASE OF:
BOARD DATE: 6 October 2011
DOCKET NUMBER: AR20110003977
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, his records be corrected to show he was promoted to the rank of major.
2. The applicant states:
* he would like his records corrected before he dies
* he was a member of the active Reserve and assigned to the 76th Division in Rhode Island while working three jobs and having a family
* he was told he would be promoted to the rank of major once he completed 1 1/2 years of Air Defense School
* after completing 1 1/2 years of the Air Defense School, the course was updated and he was told he would have to start the course all over again
* he transferred to the inactive Reserve because it was financially impossible to commit 3 more years to the Air Defense School
3. The applicant provides a DD Form 95 (Memo Routing Slip), dated 4 November 1963, and 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. Records show the applicant was inducted into the Army on 22 September 1942 and was honorably discharged on 12 May 1943 to accept a commission. On 13 May 1943, the applicant was commissioned as a first lieutenant in the Army and served honorably until 15 June 1946.
3. On 16 June 1946, the applicant was commissioned as a first lieutenant in the U.S. Army Reserve where he served until his transfer to the Retired Reserve.
4. The applicant's DA Form 66 (Officer Qualification Record) shows he was promoted to captain on 16 July 1956.
5. On 17 October 1962, the applicant was notified of promotion eligibility criteria for the next higher grade.
6. On 17 June 1963, the applicant was notified of his non-selection for promotion to the grade of major. This was his first non-selection for promotion.
7. On 24 February 1964, the applicant was transferred to the Retired Reserve.
8. On 27 May 1964, the applicant was notified of his second non-selection for promotion to the grade of major and advised that no further action was required since he had been transferred to the Retired Reserve.
9. The applicant provides a DD Form 95 which advised him that he was not selected for promotion to the grade of major due to not meeting military educational requirements.
10. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the requirements for promotion of U.S. Army Reserve and Army National Guard officers. Officers in the rank of captain through colonel are considered by a Department of the Army Mandatory Board, except in the case of unit vacancy promotion recommendations, and the recommended lists for captains through lieutenant colonel are approved by the President. Once the promotion list is approved, the promotion of each officer will be announced in orders published by the U.S. Army Human Resources Command or State, but only after it is determined that each officer meets all requirements for promotion, particularly assignment to a position with a proper grade. Law and regulation preclude an effective date of promotion prior to the date of Presidential approval or Senate confirmation of the recommended list, whichever applies, or assignment to a position with the proper grade.
11. There are several restrictions in law and regulation which govern the effective date of promotion. No officer will promoted without the publication of appropriate orders or a promotion memorandum by U.S. Army Human Resources Command. The effective date of promotion may not precede the date of Presidential approval or Senate confirmation whichever applies. The effective date of promotion also may not be prior to assignment of the officer into a properly-graded position unless the officer is mobilized in accordance with the provisions of Title 10, U.S. Code, section 12301(d).
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that his records be corrected to show he was promoted to the rank of major was carefully considered and determined to lack merit.
2. The available evidence shows the applicant was non-selected for promotion to the grade of major on two occasions. Further, he was voluntarily transferred to the Retired Reserve prior to his second non-selection notice for promotion to the rank of major. Therefore, he was not eligible for promotion consideration to major.
3. The evidence does not show and the applicant has not satisfactorily shown that he was unjustly denied promotion to the rank of major.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20110003977
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110003977
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