RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  24 February 2004
	DOCKET NUMBER:  AR2003083371

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

	Mr. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Lawrence Foster		Member	
	Ms. Margaret V. Thompson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests promotion to lieutenant colonel (LTC) on the retired list with entitlement to LTC pay from the date of his retirement.

2.  The applicant defers to counsel.

3.  The applicant provides documents from his military records and correspondence, articles, and association memberships supporting his claim.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests that the applicant be recognized for his legitimate promotion to the rank of LTC.  

2.  Counsel states that the applicant was, in point of fact, a de facto LTC.  In good faith and upon official notice of his promotion by the Army, he properly assumed the rank of LTC.  As a member of the Individual Ready Reserve (IRR) the applicant accepted his official notice of his promotion and had his official picture taken as a LTC, assumed the rank, and was treated by Army officials as a LTC.  The Army Reserve erroneously maintains that the applicant slipped by two promotion cycles because of his supposed declination of promotion for major.  The applicant maintains that the declination of promotion was not his signature but a forgery.  His name was eventually placed on the LTC promotion list but he was never successfully promoted to LTC because of the dispute over his time in grade as a major.

3.  Counsel states that there is no question of the legitimacy of the applicant, in good faith, taking the Army at its word and the Board should officially accept his assuming the rank of LTC and his de facto status of LTC.  He enrolled in correspondence courses and was communicated with by Army officials as a LTC. Counsel states that for 2 years the applicant never received notice that his LTC rank was in jeopardy.  Only later was he advised that his rank of LTC was improper.

4.  Counsel provides copies of a United Stated Supreme Court Case, an Army Board for Correction of Military Records (ABCMR) Proceedings on another officer, a graphic review of de facto status, and a history of de facto status.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's records show that he was appointed in the Army Reserve (USAR) as a second lieutenant effective 8 June 1960.  He served on active duty from 29 April 1962 through 28 April 1964 as an infantry officer.  He had been promoted to first lieutenant effective 8 June 1963.
2.  The applicant's retirement point history shows that from June 1965 through February 1969 he failed to earn any retirement points for participation in Reserve activities.  He had been promoted to captain effective 6 June 1967.  He was informed on 19 December 1968 that he had failed to participate satisfactorily in Reserve training and could request a 1-year waiver for nonparticipation or be discharged.  The applicant's only response to the letter was to request assistance in locating a Reserve unit because he was preparing to enter the Federal Bureau of Investigation (FBI) as a special agent.    There is no available evidence to show that he ever was employed by the FBI as a special agent.  He failed to request a 1-year waiver for nonparticipation.  Effective 3 February 1969 the applicant was discharged from the Army Reserve for nonparticipation in accordance with Army Regulation 135-175.

3.  On 6 December 1977 the applicant applied for Federal Recognition as an Army National Guard (ARNG) Field Artillery captain in Connecticut.  In answer to the question if he had ever been separated from the military service by reason of reclassification, or board action he answered "No."  He showed his employment history as a teacher for the past 12 years.  His application was favorably endorsed to the State Adjutant General and on 13 December 1977 he executed an Oath of Office with the Connecticut ARNG.

4.  On 24 April 1978 the National Guard Bureau (NGB) issued orders granting the applicant Federal Recognition as a Field Artillery captain effective 13 December 1977.  On 15 May 1978 the Reserve Components Personnel and Administration Center (RCPAC) appointed the applicant in the Reserve of the Army in the grade of captain in Field Artillery effective 13 December 1977.  On 27 April 1982 he was issued an Academic Evaluation Report showing that he had completed the Judge Advocate Officer Basic Correspondence Course as an Infantry captain.

5.  On 13 June 1983, RCPAC notified the NGB that the applicant had been selected for promotion to major with a promotion eligibility date (PED) of 13 April 1983.  The memorandum noted that his actual effective date of promotion would be either his PED, the date Federal Recognition was extended in the higher grade, or the date following the date Federal Recognition was terminated in his current grade.

6.  On 26 July 1983, the RCPAC memorandum was endorsed to The Adjutant General (TAG) of Connecticut.  The endorsement requested notification on whether the applicant would accept the promotion with continued assignment to the ARNG, decline the promotion with continued assignment to the ARNG in his current grade, or accept the promotion with concurrent assignment to the USAR.

7.  On 7 September 1983, the request for information was forwarded to the applicant's battalion commander as a second endorsement.  On the bottom of this second endorsement appears the applicant's name and signature below the statement that "The undersigned declines promotion with continued assignment to the ARNGUS in present grade."

8.  On 5 October 1983, the battalion commander forwarded the applicant's signed statement to the TAG of Connecticut stating that the applicant declines promotion with continued assignment to the ARNGUS in present grade as no vacancy presently existed for him to accept promotion in the higher grade.

9.  Effective 30 January 1984, the TAG of Connecticut notified the NGB that the applicant's declination of promotion had been approved for a period of 3 years from 8 April 1983.

10.  Effective 30 September 1985, the applicant was separated from the ARNG and transferred to a USAR unit with Federal Recognition withdrawn effective that same date.  On 12 June 1987, Headquarters, First US Army issued a promotion memorandum to the applicant.  The memorandum stated that the applicant was promoted effective 1 October 1985 as a Field Artillery major with a date of rank of 13 April 1983.

11.  On 25 June 1986, this Board denied the applicant's request for award of the Combat Infantryman Badge (CIB) based on his service in Korea from 8 August 1962 through 1 August 1963 with the First Cavalry Division.  The denial of his request noted that only qualified soldiers who served in Korea from 27 June 1950 to 27 July 1954, and dates subsequent to 4 January 1969 were eligible for award of the CIB.  It was also noted that he was not entitled to combat pay during his service in Korea.  His report of separation, dated 28 April 1964, which included his service in Korea, shows that no decorations, awards, or badges were authorized for that period of service.

12.  On 20 August 1989 the applicant received a referred Officer Evaluation Report for his 11 months duty as an instructor with an Army Reserve school.  The reason shown for submission of the report was his reassignment.  There is no evidence of record that the applicant ever responded to the referral or appealed the report.  Effective 7 November 1989 the applicant was transferred from his Reserve unit assignment to the Individual Ready Reserve (IRR).

13.  On 11 October 1989, the applicant was informed that he had been considered and not selected for promotion to LTC by the 1989 Reserve Components Selection Board (RCSB).  On 8 October 1990, the applicant was informed that he had been considered and selected for promotion to LTC by the 1990 RCSB.  His PED was shown as 15 April 1991 and he was notified that a promotion memorandum would be published after Senate confirmation and after confirmation that he met all regulatory promotion requirements.  There is no evidence of record, or evidence submitted with the application, that a promotion memorandum promoting the applicant to LTC was ever issued.

14.  On 15 May 1992 the Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM) responded to an apparent query from the applicant concerning his promotion status.  The applicant was informed that, since the records showed that he had declined promotion to major, his promotion to major had been adjusted to 1 October 1985 and his name was removed from the 1989 and 1990 promotion board results.  The applicant was also informed that his PED to LTC had been adjusted to 30 September 1992, but based on his nonselection to LTC by the 1991 RCSB, his PED was further advanced to 30 September 1993.  He was notified that he could apply to this Board if he believed an error or an injustice had occurred.

15.  On 26 May 1992 the applicant applied to this Board to overturn his nonselection to LTC by the 1991 RCSB.  On his application he stated that he was a qualified Judge Advocate General (JAG) Corps qualified major who had completed the basic course in 1983 and the advanced course in 1987.  There is no evidence of record that he completed the Army JAG Corps Advanced Course. The applicant also noted on his application that he had "been erroneously previously promoted."

16.  On 15 December 1995 the applicant was informed by memorandum that he had been considered for promotion to LTC by the 1995 RCSB but not selected.  On 2 August 1996 the applicant was informed by memorandum that he had been considered for promotion to LTC by the 1996 RCSB but not selected.  He was also notified that as a result of his second nonselection for promotion, he was required to be separated from the Army Reserve.

17.  The applicant's records contain a copy of an Academic Evaluation Report (AER) that shows that he completed the nonresident Associate Logistics Executive Development Course.  The AER is not dated but shows his grade as LTC and his branch as Infantry.  He also provides a transcript from the US Army Logistics Management College that shows his rank as LTC.

18.  The applicant provided a copy of a 31 July 1996 letter from the Army Reserve Personnel Center (ARPERCEN) that informed him that his retirement points had been updated and to disregard a prior notice of possible separation for nonparticipation.  The letter was addressed to him as a LTC.

19.  On 29 January 1997, this Board denied the applicant's earlier request for promotion to LTC.  The memorandum noted that the applicant had been provided consideration by a Special Selection Board (SSB) under 1992 criteria based on prior administrative oversight and that he had not been recommended for LTC by that SSB.

20.  Effective 2 May 1997, the applicant was transferred to the Retired Reserve in the rank of major.

21.  On 21 April 1998, the applicant was considered by a SSB under 1993 criteria and not recommended for promotion to LTC.

22.  On 4 February 1999, this Board again denied the applicant promotion to LTC.  The memorandum noted that the applicant had been provided consideration by a SSB under 1994 criteria based on prior administrative oversight and that he had not been recommended for LTC by that SSB.

23.  The applicant provides a copy of a letter to him from the Defense Finance and Accounting Service (DFAS).  The letter acknowledges that all of the pay information that DFAS has on him is in the pay grade of O-4/major.  The applicant also provides a copy of his Retiree Account Statement that shows his retired pay statement addressed to him as a major.

24.  The applicant provides a full-length color photograph of himself in dress green uniform.  It shows him wearing the rank of LTC.  The applicant is also shown wearing the CIB, a Presidential Unit Citation, and a wartime service shoulder sleeve insignia for the First Cavalry Division.  There is no evidence of record that he is authorized any of those awards, badges, or insignia.

25.  The applicant provides numerous copies of memberships in various organizations, which show him referred to as a LTC.  An advertisement for county office mentions that he is a Korean veteran and a LTC in the Army Reserve.  A biographical sketch also lists his rank as LTC in the Army Reserve as does his Cold War Certificate from the Department of Defense.

26.  The applicant also provides a "Resume Vitae" and a book he wrote that was published in 2002.  On both of these documents he lists himself as a retired LTC of the Army JAG Corps.  Other than the evidence that he completed the JAG basic course, there is no evidence of record that he was ever appointed in the JAG Corps.

27.  Counsel provides a copy of an ABCMR Proceeding that involves service credit for time served and promotion credit for major.  This applicant was also erroneously appointed to the rank of captain after a prior discharge and erroneously considered and recommended for promotion to major.  After the errors were discovered his appointment orders were revoked.  It was determined by this Board that the applicant was entitled to military pay received without recoupment but he was not entitled to service credit after his erroneous appointment or promotion to major.

28.  Counsel provides a summary of de facto status beginning with a US Supreme Court ruling that a de facto officer is entitled to retain the reasonable expenses of earning the fees and emoluments of the office.  The Board Proceedings of the case he provided as an example show that this was followed in that case.  He also quotes an Equal Opportunity Commission ruling and several other nonmilitary civilian cases that have no effect on an Army commissioned officer.

29.  Counsel cites one Army officer case that was ruled on by the US Supreme Court in 1925 involving the appointment of a lieutenant to major of an officer in General Pershing's Army.  When written notice had been given by the Adjutant General of the appointment as a major the officer assumed the office and was paid as a major.  When it was later discovered to be an error and the appointment should have been as a captain, he sued for recognition as a major.  The court ruled in favor of the officer based on de facto status after a proper official had notified him that he had been appointed as a major.

30.  Army Regulation 135-155 provides the policy and procedures for Reserve Component promotions.  The regulation in effect at the time provided that a major will be considered for promotion to LTC prior to completion of 7 years time in grade as a major and 12 years of commissioned service so they may be advanced in rank on their PED.  The regulation also stated that an officer selected for promotion may decline the promotion for a maximum of 3 years and will be retained on the promotion list for the period of declination.  If not promoted on or before the end of the declination period, the officer will be transferred from the unit and promoted.

31.  The regulation also provided that the effective date of promotion for unit officers who declined promotion and are past their PED would be the date of transfer to a nonunit status.  Promotion announcements for LTC and colonel would not be accomplished until after Senate confirmation.  Promotion announcements would be prepared by the promotion authorities and follow the format provided in the regulation for announcing officer promotions.  De facto status provided for in the regulation only applied after a promotion had been announced.

32.  Army Regulation 640-30, paragraph 7, provides the policy for taking official photographs.  It requires that basic branch insignia, all permanently authorized awards, decorations, combat and special skill badges, tabs, and if affiliated, regimental insignia will be worn.  The shoulder sleeve insignia (patch) and distinctive unit insignia (crests) will be worn and are the only exceptions from the permanent rule.  Soldiers must ensure that their uniforms and authorized permanent accessories, decorations, and insignia are worn per AR 670–1.

33.  Army Regulation 670-1 provides the Army uniform policy and what items may be worm on the uniform.  It provides that unit members who were present and participated in the cited action will wear unit awards.  Temporary wear of unit awards is only authorized while assigned to the cited unit.  It also provides that soldiers who were assigned overseas only during specific periods will wear a former wartime shoulder sleeve insignia on the right shoulder.  For Korea, that period is 27 June 1950 through 27 July 1954, and from 1 April 1968 through 31 August 1973.

DISCUSSION AND CONCLUSIONS:

1.  There has been no credible evidence presented by the applicant to indicate that his declination of promotion while in the ARNG was forged.  His PED was appropriately adjusted to a later date based on his declination of promotion.

2.  The applicant was considered for promotion to LTC under 1992, 1993, 1994, 1995, and 1996 criteria and not selected.  He was informed as early as May 1992 that his name had been removed from the LTC selection list.  He was also informed in December 1995 and August 1996 that he had been twice nonselected for promotion to LTC but as late as 2002 he continued to present himself as a LTC.

3.  Counsel's contention that the applicant justifiably served in a de facto status as a LTC is without foundation.  The applicant was notified that he had been selected for promotion to LTC but the promotion required Senate confirmation and verification that he met all regulatory requirements before a promotion memorandum could be issued.  There is no evidence of record, or evidence provided by the applicant or counsel, that a promotion memorandum was ever issued for LTC.  The applicant was correctly retired as a major.

4.  Counsel states that the applicant's involvement in various organizations presenting himself as a LTC also equates to de facto status.  If that were the case then the Army would have to recognize his Presidential Unit Citation, his CIB, his wartime shoulder sleeve insignia, and claim of JAG Corps qualification as valid.  The evidence of record clearly shows that the applicant is not entitled to any of these claims and this Board specifically denied his request for the CIB at least 4 years prior to the photograph he provides.
BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___ro__  ___lf____  __mt______  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.

		___Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2003083371	
SUFFIX		
RECON		
DATE BOARDED	20040224	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.02	
2.	131.09	
3.		
4.		
5.		
6.