IN THE CASE OF:	  

		BOARD DATE:	  8 August 2013

		DOCKET NUMBER:  AR20120020302 


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 major (O-4).

2.  The applicant states:

* he was passed over for promotion by the selection committee in error
* when the committee convened he was on a special assignment serving on a high-priority mission filling a lieutenant colonel (O-5) position 
* the information was not provided for the committee to review; therefore, they could not arrive at a fair decision
* the resulting passover forced him to take an early retirement as a captain (O-3)
* if the Board agrees to his request for promotion, he is not asking for any back pay; he only requests that his retirement rate be adjusted to the current rate and date
* the mission to which he was assigned had a project to bring a satellite school to the area and provide advanced infantry training to the officers being trained for Special Forces duty
* Army policy requires that to authorize a school they needed a qualified resident instructor
* he was the only person qualified to fill the facility position statewide
* if the Board approves his promotion to pay grade O-4, they should also consider retiring him in the pay grade in which he was serving at the time he retired, which was O-5
* his retirement could then be changed from mandatory to voluntary

3.  The applicant provides:

* XCH Form 102 (Request for Assignment or Attachment of USAR Personnel)
* State of Montana Office of the Adjutant General Special Orders Number 212, dated 21 December 1964 (two copies)
* Request for Relief of Assignment, dated 10 November 1964
* Approval of Conditional Release, dated 18 November 1964
* Notification granting authority to participate as an instructor in Spokane U.S. Army Reserve (USAR) School Satellite (6241-2) Missoula, Montana
* Headquarters, Sixth United States Army Special Orders Number 22, dated 8 February 1965
* Notification of Mandatory Consideration for Promotion, dated 4 June 1964
* Promotion Recommendation, dated 4 December 1962
* Notification of Nonselection for Reserve Promotion, dated 19 April 1965
* Letter from the Commander, U.S. Army Administration Center, dated 
15 December 1965
* Notification of Award of the Bronze Star Medal, dated 26 November 1945
* The University of Nebraska at Omaha Bachelor of General Studies Degree, dated 31 August 1972
* Chronology of his Military Record
* Request to the Department of the Army Office of Personnel Operations, dated 25 May 2012
* Continuation of "RSO 141," dated 22 July 1965
* Notification of Eligibility for Retired Pay at Age 60
* Special Warfare School Diploma, dated 19 July 1965

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.  With prior enlisted service the applicant accepted a commission as a second lieutenant (O-1) in the USAR on 30 August 1949.  He was promoted to first lieutenant (0-2) on 15 January 1952.  He was promoted to pay grade 0-3 on 
11 May 1955.

3.  On 14 June 1962, the applicant was notified that he was in the zone of consideration for promotion under the provisions of Army Regulation 135-155 by a Reserve selection board, but was not selected.  He was told that it was his first nonselection and that he would receive a second consideration with officers who meet the requirements of the next zone.  He was told that a new board would again evaluate his official Department of the Army file, to include any additions since the last consideration.  He was told that the board would judge his entire military record as compared with the records of the officers in the new zone of consideration.  He was told that if he was not selected by the second board, he would either be discharged from his commissioned status or he would be transferred to the Retired Reserve provided he was eligible and applied for such transfer.

4.  The applicant transferred from the USAR to the Montana Army National Guard (MTARNG) on 20 May 1963.  On 1 December 1964, the applicant was released from the MTARNG to accept an appointment in the USAR as an Infantry Instructor with the Spokane USAR School (6241-2), Missoula, MT.

5.  On 19 April 1965, the applicant was notified that he was considered, but not recommended for promotion to major by the Department of the Army Selection Board that convened on 15 September 1964.  He was told that the board was aware that he met the military education requirements for promotion and that the reason for the board's decision was not known since its members were neither required nor permitted to divulge that information.  He was told that a review of his records failed to establish that a material error or omission was present and reconsideration, therefore, was not authorized.

6.  On 20 May 1965, the applicant was notified that he had been twice considered for promotion to the next higher grade and had not been selected.  He was told that he was eligible for transfer to the Retired Reserve upon request and that if he indicated that he did not desire transfer to the Retired Reserve, his discharge would be effected.

7.  On 27 May 1965, the applicant requested to be transferred to the Retired Reserve.

8.  A review of the applicant's records shows that each time he was nonselected for promotion to pay grade O-4 he requested reconsideration contending that documents may have been missing from his records at the times his records were considered by the promotion selection boards.  Each time he was told that all of his records were available during his promotion considerations.  He was told that the reasons for the board's decisions were not known since its members were neither required nor permitted to divulge that information.

9.  Section 14502(b) of Title 10, U.S. Code, states that in the case of an officer who was eligible for promotion and was considered for selection for promotion from in or above the promotion zone by a selection board but was not selected, the Secretary of the military department concerned may, under regulations prescribed by the Secretary of Defense, convene a special selection board to determine whether the officer should be recommended for promotion, if the Secretary determines that (a) the action of the selection board that considered the officer was contrary to law or involved material error of fact or material administrative error; or (b) the selection board did not have before it for its consideration material information.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  There is no evidence in the available record, nor has the applicant submitted sufficient evidence, showing that pertinent information was not provided to the selection boards to review and make a decision.

3.  The available evidence shows that the applicant's entire record was reviewed by each of the promotion selection boards and that after careful considerations, he was twice nonselected for promotion to pay grade O-4.

4.  The applicant has not provided any evidence showing that the action of the selection boards were contrary to law or involved material error of fact or material administrative error.

5.  It has been about 49 years since the applicant was last nonselected from promotion to pay grade O-4.  The applicant has not shown any error or injustice in the actions taken by the Army in his case.

6.  In view of 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 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)                                         AR20120020302



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ABCMR Record of Proceedings (cont)                                         AR20120020302



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