IN THE CASE OF:	  

		BOARD DATE:	    8 March 2012

		DOCKET NUMBER:  AR20110016637 


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 records be corrected to show that he was promoted to the rank of lieutenant colonel (LTC) while he was on active duty in support of Operation Desert Shield/Storm and that he retired in this rank.  He also requests that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect his rank as LTC.

2.  The applicant states that he was assigned to an LTC position as an executive officer of the 14th Preventative Medicine Unit with full knowledge that the unit was deploying in support of Operation Desert Shield/Storm.  This assignment was for the purpose of promotion to LTC.  He further states that he was deployed to Southwest Asia and was unable to submit his packet for promotion to the applicable boards for review and processing.  However, he met the education requirements for promotion, the minimum time in grade (TIG) for promotion, and his command submitted a recommendation.  He also states that he was medically evacuated from theater in early April to a hospital in Nuremberg, Germany and then to Fort Leonard Wood, Missouri.  However, he was not promoted. 

3.  The applicant provides a copy of his promotion recommendation from his commander and copies of documents from his official records.

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 applicant enlisted in the Kansas Army National Guard (KSARNG) on 30 September 1970 and served until he was honorably discharged on 26 July 1978 to accept a commission in the KSARNG.

3.  He was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) and KSARNG on 27 July 1978 and continued to serve in the ARNG in a variety of assignments.  On 26 August 1986, he was promoted to the rank of major.  

4.  On 18 January 1988, he was discharged from the ARNG and was transferred to the USAR for assignment to a troop program unit in Missouri. 

5.  On 26 November 1990, the applicant was reassigned to the 14th Preventative Medicine Company for duty as the executive officer, a LTC position.

6.  On 29 November 1990, he was ordered to active duty with his unit in support of Operation Desert Shield/Storm.  He deployed to Saudi Arabia on 4 January 1991 and on 1 February 1991 his commander dispatched a recommendation for promotion of the applicant to the rank of LTC to his USAR Command in St Louis, Missouri.  The applicant was issued his 20-year letter on 8 April 1991 and he departed Saudi Arabia on 16 April 1991.  He was returned to Fort Leonard Wood, Missouri where he was honorably released from active duty.  He had served 5 months and 2 days of active service during his deployment of which 3 months and 13 days were served overseas.

7.  On 24 August 1991, he was transferred to the USAR Control Group (Retired) based on his own request.  He was placed on the Retired List in the rank of major effective 16 September 2011.

8.  In the processing of this case a staff advisory opinion was obtained from the Human Resources Command at Fort Knox, Kentucky which opines that the first promotion board the applicant would have been eligible for was the Fiscal Year 1992 LTC Army Medical Department (AMEDD) promotion selection board; however, he was removed from the Reserve Active Status List (RASL) and therefore he was not eligible for consideration.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.

9.  Army Regulation 135-155 provides the policy for selecting and promoting commissioned officers of the USAR.  It provides in Chapter 2 that in order to be eligible for consideration for promotion to the next higher grade, a USAR officer must have continuously performed service on either the RASL or the Active Duty List (or a combination of both lists) during the 1-year period ending on the convening date of the promotion board and must meet the TIG requirements as appropriate.  To be eligible for selection, the USAR officer must be eligible for consideration and must be properly in an active status and participating satisfactorily in Reserve training.

10.  Army Regulation135-155 also provides the procedures for submitting recommendations for unit vacancy promotions. It provides, in pertinent part, that the USAR unit vacancy promotion system is designed to promote officers to fill vacancies in USAR units.  Applications will be forwarded to the appropriate area commander for promotion consideration of officers who have completed the necessary promotion service prescribed for promotion to the next higher grade by the convening date of the board.

11.  Title 10, U.S. Code, section 1370 (2)(a) provides that in order to be eligible for voluntary retirement under any provision of this title in a grade above MAJ, he/she must have served in an active status in that grade for not less than 3 years, except that the secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than 2 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been promoted to the rank of LTC has been noted and appears to lack merit.

2.  While the applicant has provided a copy of the initial recommendation for promotion he has not provided and the available records do not contain the results of the recommendation of the unit vacancy promotion selection board at the time or the results of the recommendation.

3.  It is also noted that the applicant was medically evacuated from theater on 16 April 1991 and was subsequently transferred to the Retired Reserve 4 months later. 

4.  Therefore, it must be presumed that either the applicant’s departure from theater or his subsequent transfer to the Retired List occurred before the unit vacancy promotion selection board convened or could be acted upon.  In any event, it is difficult at best to determine what happened in his case 20 years ago.

5.  Therefore, in the absence of evidence to show otherwise, there appears to be no basis to grant his request for a retroactive promotion to LTC in 1991.

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 are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Gulf War.  The applicant and all Americans should be justifiably proud of his service in arms.





      _______ _   __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)                                         AR20110016637



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ABCMR Record of Proceedings (cont)                                         AR20110016637



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