IN THE CASE OF:	  

		BOARD DATE:	      17 April 2012

		DOCKET NUMBER:  AR20110010016 


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 that his date of rank (DOR) to captain (CPT) be adjusted to 13 May 1968 from 1 March 1969. 

2.  The applicant states, in effect, his original DOR for CPT was 13 May 1968 and the Department of the Army (DA) adjusted his DOR for captain to 1 March 1969.  All other promotions were based on the adjusted DOR.  At the time, he did not think much of it; but later in his military career it became a big factor.  He contends that in early 1990, he received a letter from DA indicating that he would be promoted to the rank of colonel (COL)/O-6 in October 1990.  Later that year, he received another letter from DA informing him that he was not selected for promotion to the rank of COL/O6 by his 53rd birthday (2 March 1990); therefore, he was retired from military service.

3.  The applicant states with an adjusted DOR to CPT to 13 May 1968, his adjusted DOR to COL/O6 would be 14 December 1989 which would be prior to his 53rd birthday.  He adds that he is a graduate of the Army Command and General Staff College, he met all the requirements, and earned the distinction of being promoted to COL/O-6.

4.  The applicant provides an endorsement from the Personnel Actions Division, The Adjutant General's Office (TAGO); three letters from TAGO; and a letter from the Army Board for Correction of Military Records (ABCMR).

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 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 applicant's complete military records are not available for review by the Board.

3.  The available records show he was born on 2 March 1937 and that his pay entry basic date (PEBD) is 12 September 1960.

4.  An endorsement from the Personnel Actions Division, TAGO, dated 
13 December 1968, addressed to the ABCMR, indicates that office recommended the ABCMR adjust the applicant's DOR to CPT to 13 May 1968 based on a first lieutenant DOR of 8 September 1964.

5.  A letter from the ABCMR, dated 27 June 1969, informed the applicant that the ABCMR had determined his DOR to CPT should be adjusted to 13 May 1968.  The ABCMR case file is not available.

6.  A letter from the DA Office of Personnel Operations, Fort Benjamin Harrison, IN, dated 13 April 1970, shows he was promoted to the rank of CPT effective 
1 March 1969.

7.  Promotion letters show he was promoted to major (MAJ) effective 15 March 1975 and to lieutenant colonel (LTC) effective 14 March 1982.

8.  In connection with the processing of this case, an advisory opinion was obtained from the Personnel Policy Division, National Guard Bureau (NGB).  This office stated the following:

	a.  The Soldier was a member of the Kansas Army National Guard and he was promoted in Vietnam to the rank of CPT on 13 May 1968.  Upon his return, DA adjusted his DOR to 1 March 1969.  The Soldier submitted an application for correction of military records on 17 May 1969.  A letter, dated 27 June 1969, from the ABCMR determined his records should be corrected to show a DOR to CPT of 13 May 1968.  

	b.  According to the evidence provided by the applicant, the corrections were never made.  In May 1971, he transferred to the U.S. Army Reserve (USAR) where he served the next 19 years before retiring in March 1990.  The applicant states all other promotions were based on the DOR to captain of 1 March 1969.  In early 1990, the applicant received a letter from DA stating he would be promoted to COL in October 1990.  Later that year, he received a letter from the Department of Defense stating he was not selected for promotion to COL due to being over the age of 53.  The letter further stated that effective 2 March 1990 he was separated from the USAR.  The applicant stated both letters are on file at the National Personnel Records Center (NPRC).

	c.  In accordance with the original ABCMR decision, the NGB Personnel Policy Division will work the Federal Recognition Section and adjust the applicant’s DOR to CPT to 13 May 1968 and recommends this case be sent to the USAR in order to consider correcting his DOR for promotions to MAJ and LTC.  In addition, recommend the USAR consider promoting the applicant to the retired rank of COL effective 14 December 1989. 

9.  An advisory opinion was also obtained from the Officer Promotions Special Actions section, U.S. Army Human Resources Command (USAHRC), Fort Knox, KY.  This office stated the following:

	a.  Based on the information provided, there is no guarantee that the applicant's request for possible reconsideration of promotion by any Special Selection Board can be approved at this time.

	b.  It is unfortunate that even if the NGB is successful in its effort to adjust his CPT DOR to 13 May 1968, nearly 44 years have elapsed.  The NPRC sustained a major fire and water damage in 1973 and an undetermined amount of archival records were destroyed.  Therefore, it may take several months to several years to determine if the documents and board files are available to attempt such a request.

	c.  Their office will attempt to compile a list of documents which may be required for review to determine (if proven otherwise eligible) what promotion boards the applicant may be considered for, starting with MAJ from around or about 1971.


10.  The advisory opinions were provided to the applicant to allow him the opportunity to submit comments or a rebuttal.  No response was received.  

11.  DA Pamphlet 600-3 (Commissioned Officer Professional Development and Career Management) provides guidance to individuals, commanders, and personnel managers for the professional development and utilization of commissioned officers of the United States Army.  It states that officers in many respects are ultimately their own career managers.  The key is to be involved in career development by making informed logical decisions and acting on them.  One important element of an officer's involvement is the accurate reflection of capabilities in the official military personnel files (OMPF) maintained by Headquarters, DA.  The OMPF, Officer Record Brief, and Career Management Individual File contain the data from which important career development decisions are made for selection, advancement, assignment and retention.  Officers should review, update and maintain these records throughout their careers.

12.  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 the 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's request for correction of his DOR to CPT has been carefully considered.  

2.  The ABCMR directed the correction of his DOR to CPT in 1969 and the applicant was aware of what his DOR should have been as far back as 1969.  As a commissioned officer, it was his responsibility to review, update, and ensure that his records were correct prior to any promotion board.  Instead, he waited for over 40 years after the fact and for over 20 years after he was placed on the retired list to attempt to correct his DOR.

3.  Notwithstanding the NGB advisory opinion, it has been nearly 44 years since he was selected for CPT.  As indicated in the USAHRC advisory opinion, it could take several years, if it is at all possible, to obtain the necessary documentation to determine what promotion boards he could be considered for.  Therefore, due to the passage of time, favorable consideration of his request would be barred by laches if the statute of limitations were waived.  It is not in the interest of justice to waive the statute.

4.  Based on the foregoing, 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 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)                                         AR20110010016



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ABCMR Record of Proceedings (cont)                                         AR20110010016



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