IN THE CASE OF:	  

		BOARD DATE:  10 January 2013

		DOCKET NUMBER:  AR20120011681 


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 appropriate action be taken to promote him to lieutenant colonel (LTC) in the U.S. Army Reserve (USAR).

2.  The applicant states he was considered and recommended for promotion to LTC by the Department of the Army Reserve Promotion Selection Board in October 1962.  The memorandum for record confirming this information was found in his personnel record. 

3.  The applicant provides:

* A copy of the memorandum for record, dated 13 August 1963
* A binder titled "History of the 43rd Ordnance Bomb Disposal Squad - World War II Europe"

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's records show he entered military service in Philadelphia, PA, on 1 April 1941 and served as a corporal.  He was honorably discharged on 23 July 1943 at Aberdeen Proving Ground, MD.

3.  He was appointed as a Reserve commissioned officer of the Army and entered active duty on 24 July 1943.  He served in Europe during World War II as a bomb disposal officer.  He was honorably released from active duty in the rank of captain on 27 March 1946 and he was transferred to the USAR.  

4.  He was called from his Reserve status and entered active duty on 16 October 1947.  He served in a variety of stateside or overseas assignments and he was appointed to the temporary rank of major (MAJ) in the Army of the United Sates (AUS) on 8 May 1953 and promoted to the permanent rank of MAJ in the USAR on 5 August 1955.

5.  He was honorably released from active duty on 31 December 1957 at the expiration of his active duty commitment due to disapproval of his extension of service request.  He reverted back to the USAR - Pennsylvania Military District.

6.  He enlisted in the Regular Army on 1 January 1958 and he reenlisted on 1 January 1961.  He attained the rank/grade of sergeant (SGT)/E-5.

7.  On 18 January 1962, by letter, Headquarters, Department of the Army (HQDA) notified him that he was considered for promotion to LTC by the 16 October 1961 DA USAR Selection Board, in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), but he was not selected for promotion.  The letter informed him that:

* This non-selection constituted his first non-selection and that he would be considered by the next selection/second board
* If selected by the second board, his promotion would be one year later than it would have been if he had been selected the first time
* If not selected, he would be discharged or transferred to the Retired Reserve, if eligible

8.  On 23 July 1962, he submitted a request for voluntary retirement and transfer to the Retired Reserve effective 30 September 1962 or as soon as practicable.  However, prior to issuing orders, he was advised by DA to consider a delay in retirement until 1 November 1962 in order for additional incremental retired pay.  He agreed.

9.  He retired on 31 October 1962 and was placed on the Retired List in the rank/grade of SGT/E-5 on 1 November 1962.  He was credited with completing 20 years, 3 months, and 9 days of creditable active service.

10.  On 13 August 1963, HQDA notified him that he was considered for promotion to LTC by the 22 October 1962 DA USAR Selection Board, in accordance with Army Regulation 135-155 and he was selected for promotion.  However, promotion action could not be taken because he had transferred to the Retired Reserve which was prior to his eligibility date of 23 July 1963. 

11.  Army Regulation 135-155 prescribes procedures for selection for promotion of officers of the Reserve components.  The version in effect at the time states:

	a.  Consideration for a non-unit officer (and unit officer if not earlier promoted) for promotion to the next higher grade is mandatory upon his meeting the time in grade and total years of service requirements whichever occurs later.  For promotion consideration to LTC, the requirement is 7 years in the grade of MAJ and 17 total years of service.

	b.  The effective date of promotion of a member selected after being passed over on a first consideration will be 1 year later than the original promotion eligibility date (this does not apply for promotion to colonel).

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the USAR as a commissioned officer with multiple periods of active service.  He was appointed to the temporary grade of MAJ in the AUS on 8 May 1953.  His eligibility date for promotion to MAJ in the USAR was 25 July 1955 and he was promoted to the permanent grade of MAJ in the USAR on 5 August 1955.  

2.  Based on 7 tears time in grade as a MAJ (25 July 1955), his promotion eligibility date to LTC was 25 July 1962.  He was considered for promotion to LTC by the October 1961 Reserve selection board but he was not selected for promotion.  This was considered his first non-selection.  He was advised that he would be considered by a second board and if selected by the second board, his promotion would be one year later than it would have been if he had been selected by the first board. 

3.  The following year, he requested voluntary retirement and was honorably retired on 31 October 1962 and placed on the Retired List on 1 November 1962.  

4.  While his retirement application was in motion, he was considered a second time for promotion to LTC by the October 1962 Reserve selection board.  This board selected him for promotion.  The regulation in effect at the time stipulated that the effective date of promotion of a member selected after being passed over on a first consideration will be 1 year later than the original promotion eligibility date.  

5.  The original promotion eligibility date was 25 July 1962 but was adjusted to 25 July 1963 because he had already been passed over once.  However, no promotion action could have been effected in his case because by then, he had already transferred to the Retired Reserve.  Therefore, he is not entitled to the 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)                                         AR20120011681





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ABCMR Record of Proceedings (cont)                                         AR20120011681



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