IN THE CASE OF:	 

		BOARD DATE:	       27 MAY 2009

		DOCKET NUMBER:  AR20080014888 


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, that he be promoted to the rank of colonel (COL).  

2.  The applicant states, in effect, that he believes his request to be promoted to COL, as a result of professional experiences and preparation, is not without precedent although his former request was denied stating that he had not completed the Command and General Staff College (CGSC).  He states that at the time his promotion was denied, he had not yet retired and was simultaneously enrolled in the doctoral requirements at the University of Oklahoma.  Being somewhat overwhelmed at the time, he discontinued his 
CGSC enrollment.  He states he does not believe there was an error or injustice; however, a colleague of his submitted a similar request for promotion without completion of the CGSC and was promoted to COL.  He also states that he has served in administrative positions for 20 years, most as department chairman or director.  He further states he is now seeking to determine if a promotion to COL, with or without pay from his present rank of LTC based on his military and college experience especially his doctoral degree major program in communication, is possible at this particular stage.

3.  The applicant provides a self-authored letter in support of his application.

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 record shows he initially inducted into the Army of the United States (AUS) and entered active duty on 27 December 1941.  He continually served on active duty for 3 years, 9 months, and 6 days until being honorably discharged in the rank of Technician Four (TEC4) on 2 October 1945. 

3.  On 24 December 1945, the applicant enlisted in the Enlisted Reserve Corps (ERC), in the rank of TEC4.  He served in that status for 3 years until being honorably discharged on 23 December 1948

4.  On 5 July 1949, the applicant was appointed a second lieutenant (2LT) in the Officer Reserve Corps (ORC).  

5.  On 25 October 1951, the applicant was conditionally released from his commission in the ORC in order to accept an appointment in the Army National Guard (ARNG) of the United States.  On 9 November 1951, he was appointed a 2LT in the ARNG.  

6.  On 10 October 1952, the applicant was promoted to first lieutenant (1LT) and on 25 March 1955, he was promoted to captain (CPT).

7.  On 18 October 1961, the applicant's Federal Recognition was withdrawn and he was honorably discharged from the ARNG.  

8.  On 19 October 1961, the applicant was transferred to the United States Army Reserve (USAR) in the rank of CPT. 

9.  On 24 April 1964, the applicant was promoted to major (MAJ) in the USAR.


10.  On 24 March 1970, the applicant was promoted to lieutenant colonel (LTC) in the USAR and his record shows this is the highest rank he attained and in which he served during his military service.  His record is void of any indication that he was selected for or promotion to COL during his military service.  

11.  On 5 April 1973, the applicant was removed from an active USAR status and transferred to the USAR Control Group (Retired) by reason of failure to earn sufficient retirement points.  

12.  The applicant indicated in his application that he completed his Ph.D. in 1973.

13.  On 25 June 1980, the applicant was placed on the AUS Retired list in the rank of LTC.   

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG of the United States and of commissioned and warrant officers (WO) of the USAR.

15.  Chapter 3 of the Reserve Components (RC) promotion regulation provides procedures for conducting promotion boards, and paragraph 3-16 contains guidance on selection board recommendations.  It states, in pertinent part, that promotion selection boards will base their recommendations on impartial consideration of all officers eligible for consideration.  It further stipulates that for commissioned officers either the “Fully Qualified” or “Best Qualified” method will be used.  Although the policy currently in effect was not applicable during the time the applicant served, promotion policy has always included a fair and equitable method for the consideration and selection of RC officers for promotion. 

16.  Army Regulation 135-155 further states that to be eligible for selection for promotion, an officer must be in an active status and participating satisfactorily in Reserve training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that he be promoted to COL based on his military and civilian schooling, especially his doctoral degree major in communication, was carefully considered.  However, by regulation, promotions to COL are based on a 

recommendation of a properly constituted promotion selection board based on the fully and/or best qualified method.  Although the current regulation was not applicable during the period the applicant served, promotion policy has always required an officer to be identified for promotion through a selection process, and to be promoted by the proper promotion authority.  Therefore, his subsequent schooling does not provide a sufficient evidentiary basis to support his promotion to COL outside of the defined regulatory process.  

2.  Promotion selection criteria has always included, however, the requirement that an officer be in an active status and participating satisfactorily in Reserve training.  The applicant had been removed from an inactive status in April 1973 by reason of failure to earn sufficient retirement points.  That is, he was not participating satisfactorily in Reserve training.

3.  The evidence of record confirms the applicant was promoted to LTC on 
24 March 1970 and that this is highest grade he attained in which he satisfactorily served during his military service.  His record is void of any documents or orders showing he was ever selected for promotion to COL by a properly constituted promotion selection board, or that he was ever promoted to COL by proper authority during his military service.  Further, the applicant admits there was no error or injustice related to his not being promoted to COL.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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.



      ________XXX_______________
               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)                                         AR20080014888



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ABCMR Record of Proceedings (cont)                                         AR20080014888



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