IN THE CASE OF:	  

		BOARD DATE:	    17 January 2013

		DOCKET NUMBER:  AR20120008988 


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 promotion to the rank of colonel on the Retired List.

2.  The applicant states he is a 100 percent disabled combat veteran who strived his whole career to attain the rank of colonel.  He further states he deserves to one day have this rank reflected on his headstone and it is an injustice that his record does not show the right thing.  

3.  The applicant provides a memorandum and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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.  His records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 4 June 1967.  

3.  He subsequently served in various staff and leadership positions, within and/or outside the continental United States, and having prior active duty service, he entered active duty in the Active Guard Reserve (AGR) on 17 February 1981.  He was later promoted to lieutenant colonel on 3 June 1987.

4.  On 2 October 1992, by memorandum from the Chief, Office of Promotions, Reserve Components, he was notified of his selection for promotion to the rank of colonel pending Senate confirmation.  The memorandum informed him that to be promoted he had to remain in an active status and be medically qualified for retention.

5.  On 18 October 1993, by memorandum from the Director, USAR Full Time Support Management Center, the applicant was notified of his impending release from active duty.  The memorandum stated that he would complete 20 years of Active Federal Service on 5 July 1994.  Per Army Regulation 635-100 (Officer Personnel), chapter 3, he must be released from active duty on 31 August 1994, the last day of the month following the month in which such service was completed.

6.  The applicant voluntarily requested retirement from active duty, in the rank of lieutenant colonel, and on 31 August 1994, he was released from active duty for the purpose of retirement after completing 20 years, 2 months, and 26 days active military service.  On 1 September 1994, he was placed on the Retired List in the rank of lieutenant colonel.  

7.  Although selected for promotion, there is no indication that the applicant was ever assigned to a colonel position and/or promoted to the rank of colonel while serving on active duty in the AGR.  

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the USAR, and warrant officers of the USAR.  This regulation also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations.  

9.  Chapter 4 contains guidance on processing selection board recommendations and assigning dates of promotion.  It states, in pertinent part, that commissioned officers serving on active duty in an AGR status may be promoted in a higher grade provided the duty assignment or attachment of the officer requires a higher grade than that currently held by the officer.  AGR officers who have been selected for promotion and are not assigned or attached to a position calling for a higher grade will receive a delay of promotion without requesting such action up to the maximum three year period.  AGR officers will remain on the promotion list and serve on active duty in the AGR program until they are removed from the promotion list, promoted to the higher grade following assignment/attachment to an AGR position calling for the higher grade, or promoted to the higher grade, if eligible, following release from active duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show he was promoted to the rank of colonel.

2.  By law and regulation, officers on active duty in an AGR status who are selected for promotion and who are not assigned or attached to a position authorized the higher grade, will receive an involuntary delay of promotion and will remain on the promotion list and serve on active duty in the AGR program until they are removed from the promotion list, or promoted to the higher grade, if eligible following their release from active duty.  

3.  The evidence of record in this case confirms that at the time of his selection for promotion to colonel, the applicant was serving on active duty in the AGR program as a lieutenant colonel.  There is no evidence indicating the applicant was selected for or assigned to an AGR position in the higher grade.  The record confirms he voluntarily requested active duty retirement, in the rank of lieutenant colonel.  Army Regulation 635-100 required only that he be released from active duty following his completion of 20 years of Active Federal Service.  The applicant could have requested transfer to the Individual Ready Reserve where he could have attained promotion to colonel.  As a result, there is no apparent error or injustice related to the applicant's promotion and retirement as a lieutenant colonel.  

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)                                         AR20120008988



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ABCMR Record of Proceedings (cont)                                         AR20120008988



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