IN THE CASE OF:	  

		BOARD DATE:	        8 October 2009

		DOCKET NUMBER:  AR20090008059 


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 to show that he was promoted to major, pay grade O-4.

2.  The applicant states that after being discharged for such a long time he should be promoted from captain, pay grade O-3, to major, pay grade O-4.

3.  The applicant provides no documentation 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.  On 1 May 1982, the applicant was appointed as a second lieutenant, U.S. Army Reserve.

3.  The applicant entered extended active duty on 11 July 1990.  U.S. Total Army Personnel Command, Order Number 203-005, dated 20 December 1990, determined his rank and grade as captain, pay grade O-3, Medical Corps, with an active date of rank (ADOR) of 15 July 1989.  

4.  On 12 August 1993, the applicant was discharged due to a civilian conviction.  He had completed 3 years, 1 month, and 2 days of creditable active duty service.  His character of service was general under honorable conditions.

5.  Army Regulation 600-8-29 (Officer Promotions), provides, in pertinent part, that promotion zones for Medical or Dental Corps officers will be established to ensure that those in the zone, if selected, will be promoted on the sixth anniversary of their ADOR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be promoted to the rank of major, pay grade O-4, based on the length of his separation.

2.  The available evidence shows that the applicant entered active duty in the rank of captain as a Medical Corps officer with an ADOR of 15 July 1989.  He was subsequently discharged due to a civilian conviction on 12 August 1993.  This was prior to attaining eligibility for promotion consideration for major, pay grade O-4.

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 the aforementioned requirement.

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

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)                                         AR20090008059



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ABCMR Record of Proceedings (cont)                                         AR20090008059



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