IN THE CASE OF:
BOARD DATE: 22 September 2015
DOCKET NUMBER: AR20150002802
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 military records by showing he was promoted to lieutenant colonel, pay grade O-5.
2. The applicant states he was forced to retire in spite of his outstanding military service as a major, pay grade O-4, during his last 8 years of active duty service.
3. The applicant provides copies of:
* DARP Form 2496 (Statement of Service) dated 9 September 1992
* A News Release, International Whos Who of Professionals, dated 30 April 1998
* Letter, Guinness World Records, dated 11 September 2002
* Letter from the applicant to U.S. Army Military Personnel Center, dated 13 December 2014
* Letter from the applicant to the National Personnel Records Center, dated 28 January 2015
* Letter from the applicant to his Congressman, dated 10 May 2015
* Informational Response Paper, U.S. Army Human Resources Command, dated 18 June 2015
* Letter from the applicant to the Army Review Boards Agency, dated 12 July 2015
* Letter from the applicant to the Army Review Boards Agency, dated 13 July 2015
* Letter from the applicant to the Army Review Boards Agency, dated 31 July 2015
* Army Echoes, dated June-September 2015 (Pages 7 and 8 only)
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. On 18 July 1950, the applicant enlisted in the Regular Army. He served on active duty for 3 years in the field artillery and was honorably discharged in the rank of corporal, pay grade E-4 on 17 July 1953.
3. On 31 May 1957, the applicant was appointed a second lieutenant, pay grade O-1, in the United States Army Reserve (USAR). He entered active duty as a Reserve officer on 16 June 1958.
4. The applicant was promoted to major, pay grade O-4, Army of the United States (AUS) effective 12 March 1968. He was subsequently promoted to major, USAR effective 28 May 1971.
5. The applicants records indicate that he completed the Signal Officer Basic and Career courses. He completed the Command and General Staff Officer Course in 1973.
6. In a letter, dated 12 October 1973, the Chief, Officers Section, Separations Branch, Department of the Army, notified the applicant that there were no retention programs at the time for Reserve officers who reached the maximum allowable years of active Federal service. Accordingly, he was informed that he would be released from active duty on 31 July 1975, unless he incurred an additional service obligation due to promotion. The applicant was given 5 days to acknowledge the notification.
7. Letter Orders Number S3-358, U.S. Army Military Personnel Center, dated 31 March 1975, announced the applicants release from active duty and his placement on the Retired list effective 1 August 1975 in the rank of major. His DD Form 214 (Report of Separation from Active Duty) shows he had completed a total of 20 years, 1 month, and 15 days of active duty service.
8. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), as then in effect, provided:
a. In chapter 2 the promotion eligibility and qualification requirements. USAR officers had to be in an active status and meet the service requirements.
b. Table 2-1 (Service Requirements) showed promotion consideration from major to lieutenant colonel required 4 years in grade for a unit vacancy promotion and 7 years in grade for consideration by a mandatory board.
c. Table 2-2 (Educational Requirements for Promotion) showed that fifty percent of the Command and General Staff Officer Course had to be completed prior to the date that the selection board convenes.
d. Unit boards normally convened quarterly in March, June, September and December. Mandatory boards convened annually as announced by the Department of the Army.
e. Chapter 3 (Board Schedules and Procedures) required selection boards to use a prescribed method of selection to identify officers who were fully qualified. Then the best qualified would be selected from the pool of fully qualified officers. The selection criteria to obtain the fully qualified officers included those:
* in the zone of consideration
* on active duty or participating satisfactorily in Reserve training
* physically, morally and professionally qualified
* capable of performing duties of the next higher grade under mobilization conditions
* educationally qualified
9. Army Regulation 635-100 (Personnel Separations Officer), as then in effect, provided in chapter 3, section V (Maximum Service) that Reserve commissioned officers would be mandatorily relieved from active duty upon completion of 20 years active Federal service, on the last day of the month following the month in which such service was completed. Exceptions were authorized for those who were retained by Headquarters, Department of the Army under voluntary retention programs or were serving on a promotion lock-in. Officers who were qualified for retirement could apply for voluntary retirement to be effective not later than the first day of the month following their scheduled release date.
10. The legal "Doctrine of Laches" bars a claimant from receiving relief where the claimant's delay in pursuing the claim has operated to the prejudice of the opposing party.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military records should be corrected by showing he was promoted to lieutenant colonel, pay grade O-5 because he was forced to retire in spite of his outstanding military service as a major, pay grade O-4, for his last 8 years of active duty service.
2. The available evidence of record shows that the applicant was a Reserve officer serving on active duty as a major. In 1973, he was notified that he would be released from active duty in 1975 based on his attaining the maximum allowed service on active duty for a Reserve officer. He was given the option of retiring, if qualified, or to transfer to a Reserve component. His records indicate he chose to retire and accordingly did so.
3. It has been more than 40 years since the applicants retirement from active duty as a Reserve officer. Available records are inadequate to determine the officers qualifications at the time for promotion consideration or to determine whether he was properly considered for promotion to lieutenant colonel while still on active duty. Furthermore, it would be speculative at best to know how his record of service compared against other majors who were in the same year group as he. Regrettably, due to the passage of time pertinent information has been lost or destroyed; therefore, favorable consideration of the applicant's request is barred by the doctrine of laches.
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) AR20150002802
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