BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20130002560 


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 colonel (COL) and placement on the retired list in that grade.

2.  The applicant states:

	a.  He served in the rank of COL while assigned to the U.S. Army Health Services Command (HSC).  He was highly recommended for promotion to COL by the first promotion board with all proficiency ratings of outstanding.  He is still awaiting promotion orders from the HSC, Fort Meade, MD.  His records were lost or burned at the U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, MO.

	b.  While assigned to the First Army Headquarters as a school-trained Combat Engineer, Field Artillery Executive Officer, Health Services Commander, Medical Department and Adjutant General Command and General Staff Officer Course (CGSOC) graduate, he was called-up to the first Gulf War during Desert Storm under General Schwarzkopf.  His duties and responsibilities included the observation and supervision of his components in the demolition and detonation of stored arsenals from World War II, including mustard gas, nerve gas, and tear gas to name a few, when he was stationed at the Aberdeen Proving Ground Ordnance School, Aberdeen, MD, while serving on active duty.

	c.  In 1991, a huge mushroom cloud occurred and lasted for several days stretching from Baltimore to Fort Meade.  Upon returning home, and to date, he 

has suffered with sleep apnea surgery, syncope, irregular heartbeat, prostate cancer, impotency, radial ulnar neuropathy, traumatic brain injury, rotator cuff surgery, right shoulder joint replacement, and a bleeding ulcer requiring several periods of medical treatment and/or surgery at many local private and Department of Veterans Affairs (VA) hospitals.

	d.  Pursuant to the attached table of organization, he served as a COL from 26 March 1986 until his retirement in 2001.  He was only considered once by a promotion board and informed of the results telephonically by the Chairman of the Board that he was promoted immediately and the paperwork and action would be sent to him immediately by ARPERCEN.  Although, he did not receive the paperwork he was told he could and should wear his Eagles as a "Brevit COL."  Needless to say, to date he still has not received the paperwork, promotion, or pay increase.  Although he has received numerous awards, a signed certificate for 43 years of military service from General Schwarzkopf, and many others with nine promotions, he has never had to request an earned promotion.  This is an injustice.

3.  The applicant provides:

* DA Form 1059 (Service School Academic Evaluation Report)
* Four DA Forms 67-8 (U.S. Army Officer Evaluation Report) for 1979, 1982, 1983, and 1985 (first pages only)
* Complete 1984 DA Form 67-8
* 1979 reassignment orders
* 1980 Mobilization Designation Assignment memorandum
* 1985 orders for payment
* 1985 active duty for training orders
* 1986 reassignment orders for the grade of COL
* Meritorious Service Medal orders and certificate
* 2001 Certificate of Retirement
* Certificate of Appreciation
* Listing of his active duty service
* 2010 Medical Record
* Letters from the VA and Secretary of the VA
* Excerpt from the Code of Federal Regulation 38, chapter 1 (7-1-06 Edition) reference diseases of the peripheral nerves
* Wikipedia information reference Agent Orange

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 military records are not available to the Board for review.  However, his available military records located in the interactive Personnel Electronic Records Management System (IPERMS) and the documents provided by the applicant contain sufficient evidence for the Board to conduct a fair and impartial review of this case.

3.  His military records in IPERMS contain an ARPC Form 249-E (Chronological Statement of Retirement Points), dated 8 October 2013, that shows he:

* enlisted in the Army National Guard (ARNG) on 21 November 1958
* was appointed in the ARNG as a commissioned officer on 21 November 1962
* was appointed in the U.S. Army Reserve (USAR) as a commissioned officer on 21 November 1965

4.  The applicant provides:

	a.  A DA Form 1059, dated 16 August 1978, that shows he completed CGSOC on 16 August 1978.

	b.  The first page of a DA Form 67-8 for the period 1 August 1979 through 30 April 1980, that shows he was promoted to major on 10 December 1977.  The DA Form 67-8 also stated he had an outstanding ability to analyze a problem, develop recommendations, and present a logical solution in resolving complex problems.

	c.  Orders 219-004, issued by the 89th USAR Command, dated 7 August 1979, reassigning him to a unit as a result of a change of residence.

	d.  A memorandum issued by Headquarters, U.S. Army HSC, Fort Sam Houston, TX, subject:  Mobilization Designation (MOBDES) Assignment, dated 19 November 1980, that shows he was assigned to a position at Fort Meade in the rank of major for 30 days.

	e.  The first page of two DA Forms 67-8 for the periods 13 September 1982 through 24 September 1982 and 12 September 1983 through 23 September 1983.

5.  The Soldier Management System, located on the U.S. Army Human Resources Command (HRC) Integrated Web Service, General Information section, shows he was promoted to lieutenant colonel (LTC) on 30 September 1982.

6.  The applicant also provides:

	a.  A DA Form 67-8, for the period 2 April 1984 through 13 April 1984, that shows he received "Always Exceeded Requirements" and "Promote Ahead of Contemporaries" assessments."  His rater stated, "[Applicant] has the potential for early selection to COL/O-6 to allow further utilization by the U.S. Army when needed.

	b.  Orders T-04-515744A01, issued by ARPERCEN, dated 19 April 1985, authorizing him advanced payment.  The orders show his rank as LTC.

	c.  Orders T-09-543857, issued by ARPERCEN, dated 14 September 1985, ordering him to active duty for training for 5 days.  The orders show his rank as LTC.

	d.  Orders (number illegible) issued by ARPERCEN, dated 26 March 1986, assigning him to an O-6 position at Fort Sam Houston, TX.

7.  His ARPC Form 249-E, dated 8 October 2013, shows he was retired on
16 March 1994, in the rank of LTC, upon completion of 33 qualifying years of service for retired pay.

8.  There is no evidence of record that shows he was considered and selected or not selected for promotion to COL by any Reserve Components Promotion Selection Board prior to his retirement in 1994.

9.  The applicant further provides copies of orders awarding him the Meritorious Service Medal for outstanding meritorious service for the period 16 March 1984 through 15 March 1994 and the accompanying certificate, and a Certificate of Appreciation.

10.  He reached age 60 on 2 November 2001.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officers), in effect at the time, prescribed the policies and procedures for promotion of Reserve and ARNG officers.  The regulation stated in:

* Paragraph 2-8, selection board would convene at the discretion of the Secretary of the Army for consideration for promotion to COL
* Paragraph 4-5, a Reserve officer on transfer to the Retired Reserve would be transferred in the highest grade satisfactorily held
* Paragraph 4-9, officers selected for promotion to the grade of COL would require Senate confirmation

12.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), in effect at the time, set the policies and procedures for removal and transfer of USAR Soldiers.  Paragraph 7 stated that LTCs may not exceed 28 years of service or age 60 and COLs may not exceed 30 years of service or age 60 for separation of officers for maximum age and/or service.  The removal must be accomplished within 30 days after the date of completion of the required years of service.

13.  Title 10, U.S. Code, section 1370(a) states that unless entitled to a higher retired grade under some other provisions of law, a commissioned officer of the Army who retired under any provision of law other than chapter 61 or chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the Army, for not less than 6 months.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to LTC in the USAR on 28 September 1982.

2.  His contentions that he served in a COL's position and he was selected for promotion to COL have been noted.  However, there is no evidence of record and he did not provide sufficient evidence showing he was selected for promotion to COL in the USAR prior to his retirement in 1994.  Notwithstanding the 

document he provided showing his assignment to a COL's position, promotion to the next higher grade required consideration and selection by a mandatory selection board.  His selection would have also required Senate confirmation before he could be promoted to COL.  Without evidence to the contrary, it cannot be presumed he was selected for promotion by a board and the promotion received Senate confirmation.

3.  It appears he was properly separated in the grade of LTC as this was his last grade satisfactorily held prior to his transfer to the Retired Reserve.

4.  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)                                         AR20130002560



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ABCMR Record of Proceedings (cont)                                         AR20130002560



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