MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 October 2000                   
	DOCKET NUMBER:   AR2000039634

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Barbara J. Ellis		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be promoted to colonel (COL), O-6 as of the date of his original promotion eligibility date; that his orders dated 23 July 1990 transferring him to the Retired Reserve be revoked and a new order issued with a retirement date extended to the maximum time allowed for an O-6; that he be credited with full participation in the Active Guard/Reserve (AGR) program from 1980 to the date of his new mandatory removal date; that he be issued the proper DD Forms 214, Report of Transfer or Discharge to reflect these corrections; and that he be paid all pay and allowances as a result of these corrections.

APPLICANT STATES:  That he was wronged by not receiving prompt medical treatment and prompt incapacitation pay.  He was wronged by not receiving a full and fair investigation of his pay problem.  He was wronged by being wrongly accused of being a criminal embezzler.  He was wronged by not receiving a full time U. S. Army Reserve (USAR) civilian position.  He was wronged by not being promoted to COL or even receiving an untainted consideration for promotion to that rank.  He was wronged by the failure of the corrective regulatory process to properly insure that the ordered corrective action was in fact accomplished.

COUNSEL CONTENDS:  That the applicant was injured in November 1976.  Due to the delay in granting him incapacitation pay, he had performed some drills during the period he was authorized to draw incapacitation pay.  Recoupment action was started.  Even so, in 1978 he received a letter of reprimand (LOR) for drawing drill pay and incapacitation pay.  He applied to the Board for removal of the letter.  Some time after December 1978 he was assigned to the Individual Ready Reserve (IRR).  He was recommended for a full time manning position with the 84th Division, 5th Army on 23 May 1980.  The assignment was approved and he was due to report on 15 June 1980.  However, on or about that date the senior army advisor to the 94th Army Reserve Command (ARCOM) called the   5th Army commander, told him about the LOR and basically told him the applicant was not the person for the job.  It was discovered the LOR was not in the applicant’s file so the commander of the 94th ARCOM forwarded the LOR for filing.  The applicant was passed over for promotion twice before action was taken on his application to the Board.

On 5 August 1981, the Board granted the applicant’s request and directed that the LOR, related Army Regulation 15-6 investigation and all related appeal correspondence be removed from his records and the proceedings of the Board and all related documents pertaining to his appeal be returned to the Board for permanent file.  However, the Board proceedings were never returned to the Board and were still filed in his records when his records were reconsidered for promotion.  He was passed over for promotion again and transferred to the Retired Reserve on 16 November 1982 for non-selection for promotion.

The applicant submitted another application to the Board.  On 27 June 1984, the Board directed that the LOR, related Army Regulation 15-6 investigation and all related appeal correspondence be removed from his records and the proceedings of the Board and all related documents pertaining to his appeal be returned to the Board for permanent file; that all material related to his nonselections for promotion to lieutenant colonel (LTC) be removed from his records; that his Official Military Personnel File (OMPF) be refilmed and all obliterated frames be deleted; that his records be referred for appropriate standby promotion consideration to LTC.  If promoted, his transfer to the Retired Reserve would be declared null and void; he would be promoted to LTC; he would be credited with Reserve participation from 8 March 1982 to the date he was restored to the active Reserve; he would be credited with at least 50 retirement points per retirement year from 8 March 1982 to the date he was restored to the active Reserve; and he would be afforded an opportunity to apply for a full time manning position in the grade of LTC.

The applicant was ultimately promoted to LTC.  He was not selected for any advanced schooling or any full time manning positions.  He was passed over for promotion to COL on two occasions and was transferred again to the Retired Reserve on 23 July 1990.  After receiving materials relative to his retired pay in 1996, he discovered that the Army Reserve Personnel Center (ARPERCEN) had not acted on the directive of the Board in 1984 and had not purged his file, had not credited him with retirement points and had not submitted the file to finance for calculation of back pay.  He also discovered that his file still included derogatory information about him in contravention of the Board’s directives.

EVIDENCE OF RECORD:  The applicant's military records show:

He was born on 11 March 1938.  He enlisted in the Army National Guard on      12 December 1955.  He was commissioned on 16 July 1961.  On 6 May 1970, he transferred to the USAR.  He apparently received an LOR around 1978.  Action was taken by the applicant and the Board in 1981 and 1984 as noted above by counsel.  

A letter dated 15 April 1986 from ARPERCEN to the applicant informed him that he had not been selected for the Senior Service College.

A letter dated 19 May 1986 from ARPERCEN to the applicant informed him that he had not been selected for entry into the AGR program.

A memorandum dated 21 December 1987 from the U. S. Army Military Personnel Center, Office of Promotions, Reserve Components to the applicant informed him that he had not been selected for promotion to COL.

A memorandum dated 19 December 1988 from the U. S. Total Army Personnel
Agency to the applicant informed him that he had not been selected for promotion to COL.

On 23 July 1990, the applicant was transferred to the Retired Reserve after completing the maximum authorized years of service as an LTC.  

On 19 June 1997, the applicant wrote to ARPERCEN concerning his records.  He stated he had been reviewing his personnel file in preparation for requesting military retired pay and he believed one of the 1984 Board recommendations was not completed as directed.  His records showed he had not been credited with reserve participation from 8 March 1982 to the date he was restored to the active Reserve, 15 July 1985, as directed by the Board.  His case had also not been referred to the Army Finance and Accounting Center for review as directed.

On 23 October 1997, ARPERCEN informed the applicant that his summary of retirement points had been corrected and his request forwarded to the Army Finance and Accounting Center for further review and disposition.

Army Regulation 140-10 prescribes policies and procedures to assign or transfer USAR soldiers.  In pertinent part, it states that LTCs will be removed from an active status when they complete 28 years of commissioned service if under age 25 at initial appointment.  Colonels will be removed from an active status when they complete 30 years of commissioned service if under age 25 at initial appointment.

Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement points credits and training for USAR soldiers.  In pertinent part, it states that the purpose of annual or terminal statements of retirement points is to (1) give a permanent record of the total retirement points a soldier earns during a retirement year (2) tell the soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for the retention in an active status and (3) give the soldier an opportunity to request correction of errors in the statement.

Department of the Army Pamphlet 600-3 provides guidance to individuals, commanders, and personnel managers for the professional development and utilization of commissioned officers of the United States Army.  In pertinent part, it states that officers in many respects are ultimately their own career managers.  The key is to be involved in career development by making informed logical decisions and acting on them.  One important element of an officer’s involvement is the accurate reflection of capabilities in the official military personnel files maintained by Headquarters, Department of the Army.  The OMPF, Officer Record Brief and Career Management Individual File contain the data from which important career development decisions are made for selection, advancement, assignment and retention.  Officers should review, update and maintain these records throughout their careers.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

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:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  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.

2.  The Board acknowledges the applicant’s contention that he was wronged by the failure of Government agencies to properly ensure that the Board’s directed corrective actions were in fact accomplished.  The Board regrets its inability to personally oversee the accomplishment of every correction directed but that is a physical impossibility.  The Board must rely on others to ensure the corrections are made.

3.  However, one of the “others” on whom the Board must rely to ensure its directed corrections are made is the applicant him/herself.  The applicant is fully aware of this because it was his discovery that the corrections directed by the Board in his case in 1981 were not made that led to his second application and the Board’s further directive in 1984.  

4.  Regulatory guidance to officers states that they in many respects are ultimately their own career managers and one way to manage their careers is to review, update and maintain their records throughout their careers.  Knowing the problem he had with his earlier Board-directed records correction, the applicant should have reviewed his OMPF shortly after he received the Board’s 1984 directive to ensure those corrections had been made.  If not then, he should have reviewed his OMPF after ARPERCEN’s letter dated 15 April 1986 informing him that he had not been selected for the Senior Service College, or after their letter dated 19 May 1986 informing him that he had not been selected for entry into the AGR program, or after the 21 December 1987 memorandum informing him that he had not been selected for promotion to COL.

5.  In addition, the applicant should have been receiving an annual statement of retirement points all along.  If he wasn’t receiving his statement, he should have called ARPERCEN to discover why.  

6.  The applicant had the opportunity to bring ARPERCEN’s negligence to the Board’s attention in 1986 or 1987.  He should have discovered long before 1996 that the directive concerning the award of retirement points had not been made.
His application is dated 26 January 2000.  

7.  Had the applicant brought ARPERCEN’s negligence to the Board’s attention in 1986 or 1987, it would have been appropriate to direct that his (corrected) records be considered by a standby promotion board, that he again be afforded an opportunity to apply for a full time manning position and that his retirement points be adjusted.  The Board concludes, however, that granting relief at this point in time would offer benefits to the applicant without the Army receiving reciprocal benefits in the way of his performing duties at the increased rank and responsibility.  Due to the passage of time, favorable consideration of the applicant’s request would be barred by laches if the statute of limitations were waived.  The Board concludes that it is not in the interest of justice to waive the statute.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rvo___  __lds___  __bje___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000039634	
SUFFIX		
RECON		
DATE BOARDED	20001017	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.