IN THE CASE OF:	  

		BOARD DATE:  28 January 2014

		DOCKET NUMBER:  AR20130005895 


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 records to show he was placed on the Retired List in the rank of colonel (COL)/pay grade O-6.

2.  The applicant states:

* he has a series of documents confirming that he retired in the rank/pay grade of COL/O-6 although his retired pay was ultimately based on retirement in the rank/pay grade of lieutenant colonel (LTC)/O-5
* he wants the confusion in his records corrected
* Department of Veterans Affairs (VA) records show his final retirement rank/pay grade as LTC/O-5 – however, he has reasons to question the validity of his VA records
* in 1986, he was advised his Officer Record Brief (ORB) was incomplete and inaccurate and that it had been submitted to an O-6 promotion board
* the ORB was corrected and resubmitted to the O-6 promotion board – however, he heard nothing further and shortly thereafter he received a number of DA Forms addressing him as colonel
* he expected to receive O-6 promotion orders in due process
* the initial failure to receive follow-up promotion orders did not appear to be a major problem at the time since he was managing a large bank trust department as a Reservist at age 50
* he assumed orders would soon follow since his military retirement would not begin for an additional 10 years or so
* his assumption was based on the fact the documents were signed by both the Commanding General and Chief of the Army Reserve at the time

3.  The applicant provides:

* ORB
* self-authored letter, dated 25 September 1986
* U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, MO, memorandum, dated 15 July 1988, subject:  Retirement, with the following enclosures –

* ARPERCEN letter of appreciation, undated
* ARPERCEN Order Number C-06-801368, dated 27 June 1988
* U.S. Army Retired Reserve Certificate, dated 27 June 1988
* U.S. Army Reserve Certificate of Appreciation, dated 27 June 1988

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 12 March 1937.

3.  On 25 July 1959, the applicant was appointed as a U.S. Army Reserve (USAR) commissioned officer in the rank/pay grade of second lieutenant and entered extended active duty.  He was released from active duty on 21 August 1961.

4.  His record of promotions shows:

* first lieutenant – 21 August 1961
* captain – 20 August 1965
* major – 19 August 1973
* LTC – 23 July 1979


5.  Records show the applicant was notified of his non-selection for promotion to the rank/pay grade of COL/O-6 on the following dates:

* 27 December 1983
* 2 January 1985
* 30 January 1986

6.  On 25 September 1986, the applicant submitted a self-authored letter with a copy of his corrected ORB to the President of the 1986 COL/O-6 Promotion Board.

7.  On 26 June 1987, the applicant was notified by the Chief, Removal Branch, Separation Division, ARPERCEN, that he had completed the maximum service allowed by law and that his mandatory removal date would be 24 August 1987.  This notification letter shows:

* his rank as LTC
* he had the option of electing transfer to the Retired Reserve, discharge, or he would be eligible to receive retired pay at age 60 if he had 20 creditable years for retirement purposes regardless of whether he elected transfer to the Retired Reserve or discharge

8.  On 2 July 1987, the applicant acknowledged receipt of the notification and elected to transfer to the Retired Reserve.  He authenticated his request and annotated his rank as LTC.

9.  ARPERCEN Orders Number C-08-922707, dated 11 August 1987, reassigned the applicant to the USAR Control Group (Retired) effective 23 August 1987.

10.  The applicant's DD Form 108 (Application for Retired Pay Benefits), dated 1 February 1997, shows he applied for retired pay effective 1 April 1997, 1 month after he turned age 60.  The form also shows he acknowledged the highest grade he held was LTC.

11.  ARPERCEN Orders P-06-303425, dated 24 June 1997, placed the applicant on the Retired List in the retired grade of LTC effective 12 March 1997.

12.  The applicant provided a copy of ARPERCEN Order Number C-06-801368, dated 27 June 1988, which reassigned him to the USAR Control Group (Retired) effective the same date.  The order shows his rank as COL.  He also provided copies of his U.S. Army Retired Reserve Certificate and USAR Certificate of Appreciation issued in conjunction with the order reassigning him to the Retired Reserve which show his rank as COL.

13.  The applicant also provides a letter from ARPERCEN, dated 15 July 1988, subject:  Retirement, which shows his rank as COL and an undated letter of appreciation from the Commanding General, ARPERCEN, congratulating him on his retirement which shows his rank as COL.

14.  A review of the applicant's records fails to show orders promoting him to the rank/pay grade of COL/O-6 and he does not provide a copy.  Neither does he provide a copy of an amendment correcting the orders showing his rank as COL.

15.  Title 10, U.S. Code, section 14301(f), states Reserve officers of the Army, Navy, Air Force, or Marine Corps who are in an active status and have reached the maximum years of service or age prescribed by the Secretary concerned shall:  (1) be transferred to the Retired Reserve if the member is qualified for such transfer and does not request not to be transferred to the Retired Reserve in accordance with regulations prescribed by the Secretary concerned; or (2) be discharged if the member is not qualified for transfer to the Retired Reserve or has requested not to be so transferred in accordance with regulations prescribed by the Secretary concerned.

16.  Army Regulation 135-155 (Army National Guard and Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy and procedures for selection and promotion of commissioned officers of the Army National Guard of the United States and the USAR.  An officer who has an established date for removal from the Reserve Active Status List with an established date for removal from active status that is 90 days or less from the convening date of the selection board for which the officer would otherwise be eligible for promotion is not eligible for consideration.  An established date for removal is a date that is prescribed by statute, regulation, or published in orders and not in conflict law or regulation.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has orders reassigning him to the Retired Reserve and associated certificates that show his rank/pay grade as COL/O-6, it appears that an administrative error occurred during the processing of these documents.

2.  Orders filed in his records show his last promotion was to the rank/pay grade of LTC/O-5.

3.  Records show he reached the maximum amount of service in which a USAR Soldier could serve in 1987 while he held the rank/pay grade of LTC/O-5.  On 2 July 1987, he elected to transfer to the Retired Reserve in the rank/pay grade of LTC/O-5.  His mandatory removal date was 24 August 1987.

4.  ARPERCEN Orders Number C-08-922707, dated 11 August 1987, reassigned the applicant to the USAR Control Group (Retired) effective 23 August 1987, 1 day prior to his mandatory removal date.

5.  Once he had an established date for removal from the Reserve Active Status List with an established date for removal from active status that was 90 days or less from the convening date of the promotion selection board, he was ineligible for promotion consideration.  Nevertheless, had the applicant been selected for promotion, he would have received notification of his promotion status and been advised of the effective date.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request.

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)                                         AR20130005895



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ABCMR Record of Proceedings (cont)                                         AR20130005895



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