IN THE CASE OF:	  

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110021969 


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, through his Member of Congress, promotion to major (MAJ).

2.  The applicant states he was qualified for promotion from captain (CPT) to MAJ but he was not selected.  He is now 82 years old but he has never forgotten the rejection.

3.  The applicant provides:

* Non-selection for promotion endorsement
* Memorandum, subject:  Military Education Requirements, dated
17 November 1970
* Memorandum, subject:  Consideration for Promotion, MAJ, ARNGUS (Army National Guard of the United States) , dated 28 September 1970 (non-selection)
* DA Form 2173 (Data for Retired Pay)
* Memorandum, subject:  Removal from Active Status in the USAR
(U.S. Army Reserve), dated 11 May 1971

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 was born on 27 September 1929.

3.  Having had prior enlisted service, the applicant was appointed as a second lieutenant in the Illinois Army National Guard (ILARNG) on 1 October 1954.

4.  He served in a variety of stateside assignments, including assignments to the 33rd Aviation Company and the 108th Support and Transportation Battalion.  He was promoted to first lieutenant on 25 August 1959 and CPT on 14 December 1964.

5.  On 23 October 1969, Headquarters, 108th Support Battalion, 33rd Separate Infantry Brigade, ILARNG, verified the applicant had completed the required years of service and requested the applicant be issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

6.  On 25 February 1970, by memorandum, the Chief, Promotions Division, U.S. Army Reserve Components Personnel Center, notified the applicant that he was considered for promotion to MAJ by the 23 September 1969 Reserve Selection Board that convened at Headquarters, Department of the Army (HQDA); however, he was not selected.

7.  On 17 November 1970, by letter to the Adjutant General, ILARNG, an official stated that:

* the applicant had completed 50 percent (%) of the total credit hours for the Quartermaster Officer Advanced Correspondence Course on 2 November 1970
* this requirement meets the minimum military education requirements for promotion to MAJ in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers)
* there were extenuating circumstances that prevented the applicant from completing the requirements earlier
* 
he encountered several delays caused by not being supplied with correspondence sub-courses at a rate he desired
* the examination solutions needed by him to meet the 50% requirement were lost in the mail

8.  On 28 December 1970, by memorandum, the Chief, Promotions Division, U.S. Army Reserve Components Personnel Center notified the applicant that he was considered for promotion to MAJ by the 15 September 1970 Reserve Selection Board; however, he was not selected.  The memorandum also informed him that:

* the board revealed he had not completed the military education requirements
* if he had evidence that he completed the requirements, he should forward such evidence to HQDA for consideration by an Army Standby Advisory Board
* completion of education requirements did not ensure selection for promotion

9.  Additionally, on 28 December 1970, by memorandum, the U.S. Army Reserve Components Personnel Center, notified the applicant that Army Regulation
135-155 provides that an officer who is considered for promotion and fails to be selected would be considered by the next boards and if again not selected would be discharged unless:

* eligible for a transfer to the Retired Reserve
* had a military service obligation
* had been credited with 18 but less than 20 years of service

10.  On 5 January 1971, by memorandum, the ILARNG notified the applicant of his second non-selection for promotion and the options available to him.

11.  On 19 January 1971, by endorsement to the Adjutant General, a general officer of the ILARNG recommended reconsideration be given to determine if justification existed for a DA Selection Board to review the applicant's records to find him qualified for promotion, thereby allowing him to be retained.

12.  On 25 January 1971, the Adjutant General responded that he had no authority to retain an officer after a promotion board had rendered its final decision.  However, in the applicant's particular case, he was retained only until 26 January 1971.

13.  On 25 January 1971, the National Guard Bureau (NGB) issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

14.  On 5 February 1971, the NGB issued Special Orders Number 25 AR terminating the applicant's Federal recognition effective 26 January 1971.

15.  On 6 May 1971, the U.S. Army Administration Center, St. Louis, MO, published Letter Orders Number 05-95443 removing the applicant from an active USAR status and transferring him to the Retired Reserve effective 6 May 1971.

16.  On 11 May 1971, in reference to an earlier letter from the applicant, dated
26 April 1971, an official notified him that his removal from an active status was mandatory and resulted from his second non-selection for promotion and having accrued more than 20 qualifying years of service.  The official noted that the applicant had been transferred to the Retired Reserve.

17.  On 15 August 1989, the U.S. Army Reserve Personnel Center, St. Louis, published official orders placing the applicant on the Retired List in his retired rank of CPT, effective 27 September 1969, his 60th birthday.

18.  Title 10, U.S. Code, section 616 (Recommendation for promotion by selection board) states a selection board convened under section 611(a) of this title shall recommend for promotion to the next higher grade those officers considered by the board whom the board, giving due consideration to the needs of the armed force concerned for officers with particular skills (as noted in the guidelines or information furnished the board under section 615(b) of this title), considers best qualified for promotion within each competitive category considered by the board.  Except as otherwise provided by law, an officer on the active-duty list may not be promoted to a higher grade under this chapter unless he is considered and recommended for promotion to that grade by a selection board convened under this chapter.  The recommendations of a selection board may be disclosed only in accordance with regulations prescribed by the Secretary of Defense.  Those recommendations may not be disclosed to a person not a member of the board (or a member of the administrative staff designated by the Secretary concerned to assist the board) until the written report of the recommendations of the board, required by section 617 of this title, is signed by each member of the board.

19.  Army Regulation 135-155 prescribes policy and procedure used in the selection and promotion of commissioned officers of the USAR and the ARNG.  The regulation in effect at the time stipulated several conditions for consideration 

and selection for promotion by a board action, including timer in grade, satisfactory participation, education, security, fitness, and other conditions.  The educational requirement for selection from CPT to MAJ at the time was completion of at least 50% of an advance course no later than the date the selection board convenes.

20.  A member who twice fails to be selected for promotion to the grade of MAJ will be removed from active Reserve status as a matter of law and within a prescribed time limit.  Retention in an active status is authorized in certain cases such as for those who have not completed their statutory service obligation, members credited with 18 or more but less than 20 years of service, members pending disability separation, and/or others.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be promoted to MAJ.

2.  Each board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints.  The Secretary of the Army, in his Memorandum of Instruction, establishes limits on the number of officers to be selected.  The selection process is an extremely competitive process based on the "whole officer" concept.  It is an unavoidable fact that some officers considered for promotion will not be selected.  There are always more outstanding officers who are fully qualified to perform duty at the next higher grade, who are not selected because of selection capability restrictions.

3.  It is unfortunate that the applicant was not selected for promotion to MAJ while he was in an active status; however, it is a well known fact that not everyone who is eligible for promotion during a given selection board is selected because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.  After all, selection for promotion is recognition of potential for service in the higher grade; it is not a reward for past service.

4.  His contention that the statement confirming the reasons for non-completion of the required education may have served as the basis for his non-selection is speculative at best.  Promotion boards do not reveal the basis for selection or non-selection.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant, it must be presumed that what the promotion board did was correct.
5.  Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for the board's recommendations are not known.  A non-selected officer can only conclude that a promotion selection board determined his overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110021969



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110021969



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1