IN THE CASE OF:	  

		BOARD DATE:	  4 September 2014

		DOCKET NUMBER:  AR20140000442 


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 records to show his rank/grade as major (MAJ)/O-4E instead of captain (CPT)/O-3E.

2.  The applicant states he was promoted to the rank of MAJ when he was in the U.S. Army Reserve (USAR); however, his pay grade was never changed when he retired from active duty.

3.  The applicant provides extracts of his military service and medical records and correspondence from the Department of Veterans Affairs (VA).

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.  After having prior honorable enlisted service in Regular Army, the applicant accepted a Reserve commission in the rank of second lieutenant on 7 October 1984 and he executed an oath of office on 17 September 1984.

3.  U.S. Army Military Personnel Center orders show the applicant was promoted as follows:

* first lieutenant (1LT), effective 4 July 1984, Order Number 8-94, dated 22 January 1985
* CPT, effective 1 July 1986, Order Number 57-006, dated 10 June 1986,

4.  On 27 December 1987, the applicant was released from active duty in the rank of CPT and transferred to the U.S. Army Reserve Control Group (Reinforcement).

5.  A memorandum from the Chief, Office of Promotions, Reserve Components, U.S. Total Army Personnel Command, dated 5 March 1993, subject:  Selection for Promotion, shows the applicant was selected for promotion to the next higher grade effective 30 June 1993.  This memorandum shows his rank at the time as CPT.  The memorandum states, "To be promoted effective that date, you must remain in an active status and be medically qualified for retention.  Orders promoting you will be published approximately 30 days prior to your promotion PED [promotion eligibility date]."

6.  On 22 March 1993, he was released from the USAR Control Group in the rank of CPT and assigned to the 382nd Medical Hospital, Augusta, GA.

7.  On 10 May 1993, he was appointed as a Reserve commissioned officer in the Medical Services Corps in the rank of 1LT.

8.  The applicant was ordered to active duty for a 3-year period to fulfill an active Army requirement effective 14 June 1993 and he was placed on the Active Duty List.

9.  Headquarters, 81st U.S. Army Reserve Command, Orders 116-004, dated 10 September 1993, reassigned the applicant to the U.S. Army Personnel Center (Reinforcement) effective 26 July 1993 by reason of Individual Ready Reserve "no show."

10.  A memorandum from the Chief, Personnel Information Branch, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, for the Commander, U.S. Total Army Personnel Command, dated 30 March 1993 (should read 1994), shows a date of rank (DOR) determination was requested for the applicant.

11.  A memorandum from the U.S. Total Army Personnel Command, dated 7 April 1994, shows a DOR determination was made for the applicant.  His active DOR for CPT was determined to be 12 November 1989 as announced in Order Number 134-043, dated 10 September 1993.

12.  A medical evaluation board (MEB) examination on 7 June 1994 diagnosed the applicant with chronic patellofemoral pain syndrome with chondromalacia of the patella, right knee.  His condition was medically unacceptable in accordance with Army Regulation 40-501(Standards of Medical Fitness), paragraph 3-14b, and he was referred to a physical evaluation board (PEB) for disposition.

13.  On 15 June 1994, his commanding officer provided the PEB Liaison Officer with a Commanders' Letter of Evaluation that described how the applicant's disability impacted his performance of duties.  The applicant's commanding officer recommended him for medical separation under the Army Disability System.

14.  A DA Form 3947 (MEB Proceedings), dated 11 August 1994, shows the applicant concurred with the MEB findings and recommendation, he elected not to submit comments in his own behalf, and indicated he did not desire to continue on active duty.

15.  On 17 August 1994, the Chief, Department of Psychiatry, Headquarters, U.S. Army Medical Department Activity, Fort Campbell, provided a medical addendum to the PEB.  This memorandum shows the applicant was diagnosed with recurrent, moderate, major depression manifested by depressed mood, sleep disturbance, decreased appetite, decreased concentration, and suicidal ideation.  His impairment for further military duty was marked and his impairment for social and industrial adaptability was definite.  He was recommended for referral to a PEB for retirement from the military.

16.  The applicant's records contain two copies of U.S. Total Army Personnel Command Orders D198-1, dated 13 October 1994, placing him on the Temporary Disability Retired List (TDRL) on different dates.  These orders show he was placed on the TDRL in the rank of CPT on 18 November 1994 and on 20 December 1994.  The second orders extended his effective date of retirement to 19 December 1994 and authorized 20 days of permissive temporary duty effective 7 to 26 November 1994.

17.  A DA Form 199 (PEB Proceedings), dated 7 April 1999, shows the applicant was diagnosed with:

* schizoaffective disorder, depressed type, rated at 50-percent disabling
* chronic right knee patellofemoral pain syndrome with chondromalacia, rated 10-percent

18.  The PEB found him physically unfit and recommended a permanent disability retirement with a combined rating of 60 percent.

19.  On 14 April 1999, the applicant waived his right to a formal hearing and concurred with the findings and recommendation of the PEB.

20.  On 28 April 1999, the applicant's name was removed from the TDRL and he was permanently retired in the rank of CPT on 29 April 1999.

21.  The applicant provided extracts of his medical and personnel records.  He also provided correspondence from the VA that shows a summary of his benefits and his 100-percent service-connected disability rating.

22.  His records are void of and he does not provide any evidence showing he was medically qualified for promotion to MAJ or promotion orders were issued for this rank.

23.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), in effect at the time, prescribed policy and procedures used in the selection and promotion of commissioned and warrant officers of the USAR.  Table 2-1 (Time in Grade Requirements for Commissioned Officers Other than Commissioned Warrant Officers) outlined the service requirements for promotion and specified the maximum years in the lower grade for mandatory promotion to MAJ was 7 years.

	a.  This regulation provided that mandatory selection boards would convene each year to consider Army Reserve officers in an active status for promotion to CPT through lieutenant colonel.

	b.  Paragraph 2-5 states to be eligible for promotion to the next higher grade, a USAR officer must have continuously performed either on the Reserve Active Status List or the Active Duty List during the 1-year period ending on the convening date of the promotion board and must meet the time-in-grade requirements as appropriate.

24.  The doctrine of laches is defined by Black's Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was issued a memorandum indicating he had been selected for promotion to the next higher grade with a promotion eligibility date of 30 June 1993, provided he remained in an active status and was medically qualified.

2.  There has been a lapse of 20 years since he received his notification for promotion.  Had he applied to the ABCMR at the time of his placement on the TDRL, an equitable decision may have been made in his case.  However, due to the length of time and lack of comprehensive records, the doctrine of laches must be invoked in his case.

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)                                         AR20140000442



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ABCMR Record of Proceedings (cont)                                         AR20140000442



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