IN THE CASE OF:  	  

		BOARD DATE:  18 June 2015	  

		DOCKET NUMBER:  AR20140018195 


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 he was promoted to lieutenant colonel (LTC) in the U.S. Army Reserve (USAR).  

2.  The applicant states:

* the Reserve Component Selection Board (RCSB) that convened on 3 June 1974 reviewed his records for promotion to LTC; he was not selected for promotion
* he believed and trusted that board had all necessary information; however, he discovered a letter to the effect that he completed certain courses and/or education requirements for promotion to LTC
* the letter, issued by Headquarters, U.S. Army Chaplain School, Fort Hamilton, NY, on 24 July 1969, shows completion of the educational requirements for promotion to LTC 
* the letter that informed him of his non-selection for promotion indicated that the reason for his non-selection was that he had not completed the education requirements
* after a period of illness and recovery, he went through some paperwork and located this letter 
* at age 89, he would like nothing more than to have his records read LTC instead of major (MAJ) 

3.  The applicant provides:


* Standard Form 180 (Request Pertaining to Military Records)
* Letter, dated 24 July 1969, Subject: Military Educational Requirements for Promotion
* Memorandum, dated 16 October 1974, Non-selection for promotion
* Letter, dated 1 November 1974, informing him of his non-selection

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 records show he was born in October 1924.  

3.  After having enlisted service from February 1943 to November 1945, the applicant was appointed as a Reserve commissioned officer in the Delaware Army National Guard (DEARNG) in the rank of first lieutenant on 1 March 1959. 

4.  He served in a variety of assignments in the DEARNG as a chaplain and he was promoted to captain on 6 March 1960.  He was also promoted to MAJ as a Reserve commissioned officer effective 31 January 1968.  

5.  On 16 October 1974, by letter, Headquarters, First U.S. Army notified the applicant that his records were considered for promotion to LTC by an RCSB that convened on 3 June 1974 in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) but he was not selected for promotion.  The letter stated:

* Selection boards are not permitted to divulge the reason for their selection or non-selection; therefore, unless you had not completed the military education requirements, there is no way to determine why you were not selected
* This non-selection constituted his first non-selection and he would be considered by the next selection/second board
* If selected by the second board, his promotion would be one year later than it would have been if he had been selected the first time
* If not selected, he would be discharged or transferred to the Retired Reserve, if eligible

6.  On 15 December 1975, by letter, Headquarters, First U.S. Army notified the applicant that his records were considered for promotion to LTC by an RCSB that convened on 10 October 1975 but he was again not selected for promotion.  Because this was his second non-selection, by law, he was required to be discharged, unless he was eligible to transfer to the Retired Reserve. 

7.  On 14 June 1976, Headquarters, First U.S. Army issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  

8.  On 21 June 1976, Headquarters, First U.S. Army published orders transferring the applicant to the Retired Reserve in the rank of MAJ effective 27 May 1976. 

9.  On 19 September 1984, Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis published Orders   P-09-003168 placing him on the Retired List in his retired grade of MAJ effective 21 October 1984, his 60th birthday. 

10.  He provides:

	a.  A letter, dated 24 July 1969, issued by Headquarters, U.S. Army Chaplain School, Fort Hamilton, NY, that certified he had completed the education requirements for promotion to LTC and colonel, effective 14 July 1969. 

	b.  A letter, dated 1 November 1974, from the Commanding General, 79th USAR Command, advised the applicant to take stock of his professional status and if (emphasis added) he had not yet attained the educational qualifications for promotion he would of course want to initiate the necessary action to do so without delay.

11.  Army Regulation 135-155 prescribes procedures for selection for promotion of officers of the Reserve components.  The version in effect at the time states:

	a.  Consideration for a non-unit officer (and unit officer if not earlier promoted) for promotion to the next higher grade is mandatory upon his meeting the time in grade and total years of service requirements whichever occurs later.  For promotion consideration to LTC, the requirement is 7 years in the grade of MAJ and 17 total years of service.
	b.  The effective date of promotion of a member selected after being passed over on a first consideration will be 1 year later than the original promotion eligibility date (this does not apply for promotion to colonel).

	c.  Special Selection Boards (SSB) are convened to consider commissioned officers for promotion when Headquarters, Department of the Army discovers that an officer was not considered from in or above the promotion zone by a regularly scheduled board due to an administrative error; or when the action by a board which considered an officer in or above the promotion zone was contrary to law or involved a material error; or the board which considered an officer from in or above the promotion zone did not have before it for consideration some material information.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  

	d.  An officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial or the officer, exercising reasonable diligence, could have discovered and corrected the error in his/her official records.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the ARNG/USAR as a commissioned officer from 1 March 1959 to 27 May 1976.  He was promoted to the grade of MAJ in the USAR on 31 January 1968.  Based on 7 years time in grade as a MAJ, he was considered for promotion to LTC by the June 1974 RCSB but he was not selected for promotion.  This was considered his first non-selection.  The letter that informed him of his non-selection stated that "selection boards are not permitted to divulge the reason for their selection or non-selection; therefore, unless you had not completed the military education requirements, there is no way to determine why you were not selected."  

	a.  This letter is clear in that his non-selection was not related to education.  That would have been the only case where the reason for non-selection would have been indicated on the letter. 

	b.  The letter clearly stated that selection boards are not permitted to divulge the reason for their selection or non-selection; therefore, there is no way to determine why he was not selected.  

2.  He was considered for promotion to LTC a second time the following year but he was again not selected.  As required by law and regulation, he was required to be discharged (or transferred to the Retired Reserve, if eligible).  He was issued a 20-Year Letter and transferred to the Retired Reserve.  

3.  Each promotion/selection board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints.  The Secretary of the Army, in his Memorandum of Instruction, establishes limits on the number of officers to be selected.  The selection process is an extremely competitive process based on the "whole officer" concept.  It is an unavoidable fact that some officers considered for promotion will not be selected.  There are always more outstanding officers who are fully qualified to perform duty at the next higher grade, but who are not selected because of selection capability restrictions.

4.  It is unfortunate that the applicant was not selected for promotion to LTC while he was in the Selected Reserve; however, it is a well known fact that not everyone who is eligible for promotion during a given selection board is selected, because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.  

5.  It is also a well known fact that promotion boards do not reveal the basis for selection or non-selection.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant it must be presumed that what the board did was correct.  

6.  Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for the board's recommendations are not known.  A non-selected officer can only conclude that a promotion selection board determined that his overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion. 

7.  In view of the facts of this case, there is an insufficient evidentiary basis to support the applicant’s promotion or reconsideration by an SSB.  







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)                                         AR20140018195



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ABCMR Record of Proceedings (cont)                                         AR20140018195



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