MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 September 2000                   
	DOCKET NUMBER:   AR2000044473

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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 returned to active duty.

APPLICANT STATES:  That he was erroneously and unjustly released from active duty due to a personal dispute with his battalion commander.  He was denied due process.  He was notified on or about 28 November 1985 that he was not recommended for promotion and he was discharged within two weeks.  He believes proper procedures and regulations were ignored.  Normally, a lieutenant not recommended for promotion is afforded a rehabilitative transfer.  He was denied this opportunity.  He believes an improper regulation was cited for his release.  The regulation used was for Regular Army officers not selected for the second time.  He was an Army Reserve officer on active duty and not selected for the first time.  He only recently gained access to his records and the Army regulations concerning his discharge.  He provides his Certificate of Release or Discharge from Active Duty, DD Form 214, as supporting evidence.

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

After having had prior enlisted service, he was commissioned a second lieutenant (2LT) in the U. S. Army Reserve (USAR) on 19 May 1984 and entered active duty on 17 June 1984.  He attended the Infantry Officer Basic Course and his Academic Evaluation Report shows that he marginally achieved course standards.  

The applicant’s annual Officer Evaluation Report for the period ending               10 October 1985 is an adverse report.  It contains two 3s and three 2s in Part IVa, 14 areas of professional competence (ranging from 1 – to the highest degree to 5 – to the lowest degree).  There are seven negative comments in Part IVb.  His performance is rated as “met requirements” in Part Vb and his potential is rated as “do not promote” in Part Vc with corresponding negative comments. The senior rater rated him below center of mass (18/17/12/3/*1/1/0/0/0; * being the applicant’s rating).  The senior rater’s only positive comment was “He’s a good person and has an affable personality.”

On 13 December 1985, the applicant was honorably released from active duty in the rank of 2LT under the provisions of Army Regulation 635-100, chapter 3, section XXXI, failure of selection, permanent promotion.  He was transferred to the USAR Control Group (Reinforcement).

On 19 March 1987, the applicant was transferred to the Army National Guard.  On 6 June 1987, he was transferred back to the USAR Control Group (Reinforcement) due to failure to qualify for permanent Federal recognition.

On 16 July 1987, the applicant was transferred from the USAR Control Group (Reinforcement) to a Troop Program Unit.  

On 16 February 1988, the applicant was dropped from the rolls of the Army.  In a 1992 letter to the Army Reserve Personnel Center, the applicant mentioned his being dropped from the rolls was due to his civil conviction on a drug charge.  He may have been later reinstated because on 27 August 1993 he was honorably discharged from the Ready Reserve as a 2LT.  On 27 June 1996, he enlisted in the Army National Guard for 1 year.  His DD Form 149 shows he is presently a captain in the USAR.

Army Regulation 624-100, in effect at the time, prescribed the policies and procedures for the promotion of commissioned officers in the U. S. Army on the active duty list and promotion of warrant officers in the Army of the United States and the Regular Army.  It applied to all Regular Army and Reserve Component commissioned officers on the active duty list.  In pertinent part, it provided that an officer on the active duty list was eligible to be promoted to first lieutenant (1LT) on the day after he or she completed 18 months of active duty service as a 2LT.  The servicing military personnel office (MILPO) would send a Recommendation for Promotion of Officer, DA Form 78, to the approval authority at least 60 but not more than 120 days before the officer was eligible for promotion.  The promotion would be approved or denied and the form returned to the MILPO before the eligibility date.  The recommending officer would be the eligible officer’s rater.  The approving officer would be the approval authority (a commander who was a lieutenant colonel or higher could promote officers assigned to his command).  The recommending officer and the approval authority could be the same person.

The recommending officer who recommended against promotion would fully explain his nonrecomendation for promotion and recommend or nonrecommend that the officer be retained on active duty for 6 months.  An approval authority who denied promotion would explain fully the reason for the denial, recommend or nonrecommend retention for 6 months, refer the form to the officer for comment or acknowledgement, and send the DA Form 78 with the officer’s comments and further explanation to the promotion review authority (PRA).  After reviewing the action of the approval authority and the statement of the officer, the PRA either directed that the officer be promoted or approved the recommendation of the PRA that the officer not be promoted.  If not approving promotion of a 2LT, the PRA would approve or disapprove that the officer be retained for 6 months.  When the PRA denied promotion and retention for 6 months, the MILPO would act to separate the officer from active duty no later than 90 days after notification of pending separation.

Army Regulation 635-100, in effect at the time, governed the separation of officers.  Chapter 3, section XXXI, paragraph 3-111a(2) provided that Reserve 2LTs found unqualified for promotion to 1LT on the active duty list and who were not retained on active duty for a minimum of 6 months would be released from active duty.

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.  There is no evidence of record and the applicant provides none other than his self-authored statement to show he was denied due process.  Since the DA Form 78 is not available, the Board presumes that all appropriate actions were taken.

3.  A rehabilitative transfer is not required when a 2LT is nonrecommended for promotion to 1LT.  Given the applicant’s record of service as shown by his Academic Evaluation Report and Officer Evaluation Report, his nonrecommendtion for promotion and nonrecommendation for retention for 6 months (which is probably what the applicant means when he mentions “rehabilitative transfer”), should not have been a surprise to him.

4.  The proper separation authority was cited.  Army Regulation 635-100, chapter 3, section XXXI, paragraph 3-111a(2) provided that Reserve 2LTs found unqualified for promotion to 1LT on the active duty list and not retained on active duty for a minimum of 6 months would be released from active duty.  The applicant was a Reserve officer on the active duty list.  

5.  The Board does not agree with the applicant’s contention that he only recently discovered this error or injustice because he just recently gained access to his records and the Army regulations concerning his discharge.  He was released from active duty in 1985.  He should have known then whether he felt he was “unjustly” released.  He continued to serve in the USAR and would have had access to Army regulations.  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.
6.  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

__jhl___  __clg___  __ena___  DENY APPLICATION

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

INDEX

CASE ID	AR2000044473	
SUFFIX		
RECON		
DATE BOARDED	20000921	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.