IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110014123 


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 record to show he retired in the rank of lieutenant colonel (LTC)/pay grade O-5.

2.  He states:

* he was commissioned as an ensign/pay grade O-1 in the U.S. Navy Reserve (USNR) on 15 July 1975 and transferred to the U.S. Army Reserve (USAR) on 17 May 1984
* while in the USNR he was a lieutenant junior grade (LTJG)/pay grade O-2 with a promotion recommendation to LT/pay grade O-3 at the time of transfer to the USAR
* upon transfer to the USAR he was reduced from pay grade O-2 to pay grade O-1 due to an improper personnel action
* his research revealed he should have been transferred with no loss in time or grade
* he was appointed a 2LT/pay grade O-1 in the USAR on 13 July 1984
* documentation shows he was promoted to LTJG/pay grade O-2 in the Navy on 15 August 1977, and again to 1LT/pay grade O-2 in the USAR on 16 June 1987
* he should have transferred to the USAR in the rank of 1LT/pay grade O-2
* he should have been retired as an LTC/pay grade O-5
* his USNR service was not fully considered when he was assigned to the USAR in the rank of 2LT
* upon retiring no credit or consideration was given for his USNR service or his time in grade (TIG)
* the inconsistency is that he served in pay grade:

* O-2 from August 1977 to July 1984 (while in the USNR)
* O-1 in the Army until he was promoted to O-2 in June 1987

* the reduction in rank during his transfer put him at a disadvantage even after being placed on the retired list
* over the course of 10 years he served in pay grade O-2 for approximately 7 years, pay grade O-1 for 3 years, then back to pay grade O-2 after being promoted to 1LT 
* his final contention is he should have been retired as an LTC as a matter of equity

3.  He provides his: 

* DA Form 71 (Oath of Office-Military Personnel)
* first endorsement to the Bureau of Naval Personnel (BUPERS) Orders 143206
* certificate of appointment
* six memoranda

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.  After having prior enlisted service in the USNR the applicant was appointed as an ensign/pay grade O-1 in the USNR, effective 15 August 1975. 

3.  His official military records contain:

	a.  A memorandum from the Naval Reserve Personnel Center, New Orleans, LA, Subject:  Temporary appointment to LTJG/pay grade O-2 pursuant to the provisions of Title 10, U.S. Code, Section 5910, dated 1 August 1977, which states he was notified of his temporary appointment to LTJG/ pay grade O-2, effective 15 August 1977.  His signature indicates he accepted the appointment.

	b.  A memorandum from the Office of the Adjutant General, USAR Components and Administration Center, St. Louis, KY, Subject:  Appointment as a Reserve Commissioned Officer of the Army under Title 10, U.S. Code 591 and 593, dated 8 May 1994, which states, in pertinent part, upon acceptance he would be appointed as a 2LT/pay grade O-1 as a Reserve Officer in the Army.  He accepted the appointment on 13 July 1984.

   c.  A DA Form 71, which shows he was commissioned a 2LT/pay grade O-1 in the USAR, effective 13 July 1984.

	d.  A memorandum from Headquarters, First U.S. Army, Fort George G. Meade, MD, dated 16 June 1987, which shows he was promoted to 1LT/pay grade O-2 in the USAR, effective 28 December 1985.

	e.  A memorandum from Headquarters, First U.S. Army, Fort George G. Meade, MD, dated 16 June 1987, congratulating him on his recent promotion 

	f.  A memorandum from the U.S. Total Army Personnel Command (TAPC) (now known as the Human Resources Command (HRC), St. Louis, MO, dated 
13 June 1990, which shows he was promoted to captain/pay grade O-3 in the USAR, effective 8 May 1990.

	g.  A memorandum from TAPC, dated 5 April 1996, which shows he was considered, but not selected for promotion to major (MAJ)/pay grade O-4.

   h.  HRC's Interactive Web Site shows that as a result of a Department of the Army Standby Advisory Board held on 12 June 2003 he was selected for and ultimately promoted to MAJ, effective 25 December 1996. 

	i.  A memorandum from HRC St. Louis, MO, dated 2 November 2004, which shows a Special Selection Board was convened and he was considered under the 2002 promotion criteria, but he was not selected for promotion.

	j.  On 9 March 2010, the applicant was retired and placed on the retired list in the rank of MAJ/pay grade O-4.

4.  During the processing of this case an advisory opinion was obtained from Headquarters, U.S. Army Recruiting Command, Fort Knox, KY, dated 1 March 2012, which stated that the Health Services Directorate (HSD) was not capable of providing any legitimate guidance on the applicant’s case for the following reasons:

   a.  The rules and regulations governing an inter-service transfer in 1984 does not stand today; they do not have the directives covering that time period, nor did that organization exist at that time.
   
   b.  To provide an educational response they would need to review the applicant’s original packet to identify the agency of ownership, identify and follow the processes that existed during the time period, and come to an opinion.  Under current regulations it is customary for service members transferring to the Army to be brought in at a rank lower than the rank obtained in the other services.

5.  In conclusion, HSD cannot provide an advisory opinion on this case due to lack of documentation; moreover, they cannot state whether or not he would have ever been promoted to LTC.  The recommendation is that the applicant's status remains unchanged.  

6.  On 9 March 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  

7.  He rebutted the advisory opinion by submitting:

   a.  A memorandum, from the USAR Army Medical Department (AMEDD) Procurement Office, dated 17 May 1984, informing the applicant that his file did not contain the following documents and requesting that the applicant forward a copy of his original appointment letter and USNR promotion letter or orders to the USAR AMEDD Personnel Counselor.  He was also advised he had been credited with all of the active duty service shown on his DD Form 214.
   
   b.  First endorsement to BUPERS Orders 143206, dated 15 August 1975, which show he was appointed as an ensign/ pay grade O-1 in the USNR.

   c.  His officer appointment acceptance and Oath of Office to ensign, dated 15 August 1975.
   
   d.  His certificate of appointment to ensign in the USNR, effective 15 August 1975.
   
   e.  A memorandum from the USNR Personnel Center, dated 11 June 1984, Subject:  Contingent Resignation from the USNR, which stated that upon his acceptance of an appointment in the USAR he must provide documentary evidence to the USNR Personnel Center.
   
   f.  Documents regarding his promotions from 2LT to MAJ as discussed in paragraphs 3d, f, and h.

8.  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 contention that he should be retired in the rank of LTC was carefully considered and found to be without merit.

2.  There is no evidence of record nor did the applicant provide evidence that shows he was selected for promotion to pay grade O-3 in the USNR.

3.  The evidence of record clearly shows by his signature on the DA Form 71 that upon transfer to the USAR the applicant accepted an appointment in the rank of 2LT/pay grade O-1.  If he thought this was an error he could have sought clarification at that time.

4.  The available evidence shows he was ultimately promoted to MAJ/pay grade O-4 as a result of a standby advisory board and placed on the U.S. Army Retired List in this rank.

5.  There is no evidence that he was selected and promoted to LTC; therefore, there is no basis for placing him on the retirement list in a rank that he has never held.

6.  It has been 28 years since he accepted the appointment as a 2LT/pay grade O-1 in the USAR.  As indicated in the HSD advisory opinion, due to the passage of time and the lack of evidence, 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.

7.  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 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)                                         AR20110014123



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ABCMR Record of Proceedings (cont)                                         AR20110014123



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