IN THE CASE OF:	  

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120021222 


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, in effect, correction of his records to show he was promoted to lieutenant colonel (LTC) in 1988.

2.  The applicant states:

	a.  He was a field artillery (FA) captain (CPT) in the Virginia Army National Guard (VAARNG) and he was selected for promotion to major (MAJ).  Since there were no slots available for a MAJ in the VAARNG he was not able to be promoted.  Therefore, he transferred to the U.S. Army Reserve (USAR) and was promoted to MAJ.  While in the USAR, he attended the non-resident Command and General Staff College (CGSC) and graduated in August 1985.  He also branch transferred in 1985 from FA to Aviation (AV).  

	b.  After completing CGSC, he was attached to an aviation unit in Italy.  It allowed him to become current in the UH-1H and to remain current while assisting an active duty aviation unit when they needed an extra pilot.  In 1988, he rejoined the VAARNG and, since there were no MAJ AV slots available, he was allowed to revert to the rank of chief warrant officer two (CW2). 

	c.  In November 1988, he saw in the Army Times that he had been selected for promotion to LTC in the AV branch.  He did not receive an official letter informing him of this so he contacted the VAARNG personnel office and inquired about the promotion.  He was informed that since he received his 20 Year Letter indicating he had sufficient points to retire the promotion would be taken care of when he chose to retire or, if he transferred to the USAR, the promotion would be taken care of at that time.  He continued to serve in the VAARNG, attaining the rank of CW4, until he reached his mandatory retirement date (MRD) on 16 August 2004.

	d.  He contends he was given erroneous information on how to handle the promotion.  He should have at least received an official letter informing him of his selection, along with the options that were available to him to receive the promotion.  At least, he should have been given the opportunity to accept a transfer from the ARNG to the USAR which would have allowed him to be promoted to LTC.  He is requesting to be allowed to accept the promotion to LTC that he was selected for in 1988.

3.  The applicant provides two pages of the Army Times.

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 was born on XX August 1944.

3.  Having had prior enlisted, warrant officer, and commissioned service in the Regular Army, USAR, and the ARNG, the applicant's records show he was promoted to the rank of MAJ in the USAR on 15 August 1981.  

4.  On 5 August 1987, he completed a National Guard Bureau (NGB) Form 60 (Request for Clearance from USAR for Enlistment/Appointment in ARNG) wherein he requested release from the USAR to accept an appointment in the VAARNG.  The request was subsequently approved.

5.  On 26 January 1988, he was appointed as a CW2 in the VAARNG, granted temporary Federal recognition in that grade, and executed an oath of office.

6.  On 7 March 1988, NGB published Special Orders (SO) Number 44 AR extending him Federal recognition for his appointment from the USAR to CW2 with a date of rank (DOR) and effective date of 26 January 1988.

7.  He served in various staff and leadership positions in the VAARNG and he was promoted to the rank of CW4 on 25 March 1997. 

8.  He was honorably retired from the VAARNG on 16 August 2004 in the rank of CW4 and on 17 August 2004, he was placed on the Retired List in the rank of MAJ.

9.  During the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions Branch, U.S. Army Human Resources Command (HRC) on 29 January 2013.  The advisory official recommended disapproval of the applicant's request to have his records corrected to show he was promoted to LTC.  The advisory official opined:

	a.  Officer Promotions substantiated that the applicant, then a CW2, was erroneously considered and subsequently selected for promotion to LTC by the 1988, LTC Army Promotion List (APL), Promotion Selection Board (PSB).

	b.  Based upon his appointment in the ARNG in the grade of CW2, and based upon the Commonwealth of Virginia Orders 28-15, dated 10 February 1988, with an effective date of 26 January 1988, and associated NGB SO Number 44 AR, dated 7 March 1988, regarding his Federal recognition, he had vacated his appointment to MAJ.  Therefore, he was ineligible to be considered by the respective 1988 LTC APL, PSB which did not convene until 15 August 1988.

	c.  The apparent reason the applicant never received any official notification of selection was that he was administratively removed from the respective promotion selection list after the recommendation but prior to the official release based upon the provisions listed in paragraph 9b above.

	d.  It is regrettably acknowledged the HRC-St Louis proponent apparently failed to remove his name from the promotion information provided to the Army Times for their subsequent public release on 21 November 1988.  As such, the applicant received a false impression that he was actually on a Standing Promotion List for promotion to LTC when in fact he was not even eligible to be considered by that particular promotion board.



10.  In a response to the advisory opinion, dated 6 February 2013, the applicant stated: 

	a.  He has filed the advisory opinion under the heading being in the right place at the wrong time for things that happened to him during his time in the military.  In 1966, he was selected for a Navy program that would have allowed him to join the Navy as an E-5 at the end of his junior year of college and go through pre-flight school during the summer.  After graduation, he would have been promoted to ensign and started flight school.  However, Congress changed the program so applicants had to wait until they graduated to join.  He ended up with an 1A draft status, joined the Army Warrant Officer Program instead, and became a helicopter pilot.

	b.  Upon returning from his first tour in Vietnam, he was assigned as a flight instructor and was promoted to 1LT in the field artillery.  He received orders for Vietnam enroute to the officer basic course and then the fixed wing "Q" course.  However, the Army lost so many rotary wing instructor pilots that his "Q" course was cancelled and he headed to Vietnam for a second tour. 

	c.  He was promoted to MAJ while in the VAARNG but he could not wear the rank since there were no slots.  He rejoined the USAR and filled a slot in Italy.  He completed CGSC and he was asked to rejoin the VAARNG.  However, there were no MAJ or LTC slots so he was allowed to revert back to CW2 and he was a CW4 when he reached age 60 and his MRD.

	d.  He requests the Board reject the recommendation of HRC and allow him to be promoted to LTC because his records were sent to the 1988 LTC, APL PSB, and the PSB found he had all the qualifications to become an LTC and recommended he be promoted to LTC.  The LTC list was sent to the Army Times and his name appeared as being selected for LTC.  He received congratulations from members in his unit and his commander and they were all under the impression he had been promoted and would be given the rank when he retired.

11.  Army Regulation 135-180 (Qualifying Service for Retired Pay - Nonregular Service), paragraph 1-4, states that retired pay is pay granted to Soldiers and former Reserve Component (RC) Soldiers under Title 10, USC, after completion of 20 or more years of qualifying service and upon attaining age 60.  This pay is based on the highest grade satisfactorily held at any time during an individual's entire period of service, other than in an inactive section of an RC.




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that on 15 August 1988 when the LTC Promotion Selection Board convened the applicant was serving as a CW2 in the VAARNG.  He was not eligible for consideration for promotion to LTC as he was no longer serving as a MAJ in the USAR.  Regrettably, due to an administrative error, he was erroneously considered by the board, selected, and his name was published in the Army Times.  However, having his name published in the Army Times as having been selected for promotion to LTC does not validate the erroneous selection.

2.  Notwithstanding the applicant's sincerity that he was told he would be retired in the rank of LTC, the governing regulation states an RC Soldier will be placed on the Retired List in the highest rank they held satisfactory throughout their period of service.  The applicant was correctly placed on the Retired List in the rank of MAJ, the highest rank he held. 

3.  In view of the foregoing, 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 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)                                         AR20120021222



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ABCMR Record of Proceedings (cont)                                         AR20120021222



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