IN THE CASE OF:
BOARD DATE: 17 December 2013
DOCKET NUMBER: AR20130004862
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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank/grade as captain (CPT)/O-3 vice first lieutenant (1LT)/O-2.
2. The applicant states, in effect, he was due to be promoted to CPT on his four year anniversary, 2 November 1998. His name was on the CPT promotion list and he should have been promoted. He was honorably discharged for a disability with severance pay on 16 November 1998, 14 days after his date of rank (DOR) for CPT.
3. The applicant provides:
* A supplemental information sheet
* Congratulatory letter, dated 29 September 1998
* DD Form 214
* A letter from the Department of Veterans Affairs (VA), dated 13 February 2013
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 appointed as a Reserve commissioned officer on
12 August 1994 and entered active duty on 2 November 1994. He served in area of concentration 91A (Ordnance General) and 11A (Infantry).
3. Order Number 320-049, issued by the U.S. Total Army Personnel Command (now the U.S. Army Human Resources Command (HRC)), on 16 November 1998. These orders:
* show he was scheduled to be promoted to CPT with an effective date and DOR of 1 December 1998
* state that the promotion is not valid and will be revoked if the officer concerned is not in a promotable status on the effective date of the promotion
4. He was honorably discharged from active duty on 16 November 1998. His DD Form 214 shows at the time of his discharge he was serving in the grade of 1LT with the DOR of 2 November 1996 and he was discharged by reason of disability, severance pay.
5. Army Regulation 600-8-29 (Officer Promotions), paragraph 1-12 (Promotion Lists) in effect at the time, states an officer who is on a promotion list and is removed from the active duty list (ADL) prior to the effective date of promotion shall not be promoted from the ADL promotion list. A subsequent return to the ADL does not warrant a return to promotion list status held prior to release from active duty.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should have been promoted to CPT prior to his discharge because he was on the promotion list and he was due to be promoted to CPT on his four year anniversary, on 2 November 1998.
2. However, the evidence shows he was scheduled to be promoted with the effective date and DOR of 1 December 1998, after he was discharged.
3. Army regulations in effect at the time and the orders that would have promoted him to CPT specifically state that an officer who is on a promotion list and is removed from the ADL prior to the effective date of promotion shall not be promoted from the ADL promotion list. Additionally, any promotion orders previously issued will be considered invalid and revoked if the officer concerned is not in a promotable status on the effective date of the promotion.
4. The evidence of record shows he was discharged and, therefore, removed from the ADL prior to the effective date of his promotion. As such, he was not eligible for promotion to CPT because he held no military status on the date the promotion orders became effective. Additionally, at the time of his discharge there was no regulatory or statutory provision for promoting officers who were discharged due to a medical disability.
5. Based on the foregoing, there is an insufficient evidentiary basis for granting his 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) AR20130004862
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