ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 September 2019 DOCKET NUMBER: AR20180003459 APPLICANT REQUESTS: retroactive promotion to the rank of Captain while serving in the Nebraska Army National Guard (NEARNG) with an effective date of 1 May 1959. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self Authored Letters * Special Orders # 65 * Special Orders # 14 * Reserve Appointment Certificate * Promotion Orders * Nebraska Military Department Office of the Adjutant General response letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states that based on his time in service and date of rank to First Lieutenant (1LT), he should have been promoted to Captain (CPT) on or about 1 May 1959 while he was assigned to the Nebraska Army National Guard (NEARNG). As a foundation to his request, the applicant states that he was: * inducted into the United States Army on 18 May 1944; served as an enlisted Soldier until 27 June of 1946 * enlisted into the Enlisted Reserve Corps (ERC) 26 August 1946 and served until 31 August 1949 * transferred into the NEARNG on 1 September 1949, obtained his commission as a Second Lieutenant (2LT) * promoted to 1LT in the NEARNG on 30 January 1952 * promoted to CPT in the USAR 1 May 1959 and served until 30 Nov 1959 * transferred into the United States Army Reserve (USAR) on 1 December 1959 and served on active duty until 17 May 1965 * transferred into the Army Reserve (Control Group) where he remained until 18 June 1968 when he was placed on the retired list as a MAJ 2. The applicant then states that review of the provided documents will reflect that he served as a 1LT within the NEARNG from 30 January 1952 until 30 November 1959, a total of 7 years without being promoted to CPT while simultaneously serving in the USAR from 1 May 1959 to December 1959. The previously mentioned documents will provide evidence that he should have been promoted to CPT while serving in the NEARNG on or about 1 May 1959. 3. The applicant contests that he was promoted to MAJ in the USAR on 17 May 1965, a rank in which he served until his retirement on 18 June 1968. 4. The applicant feels that he may have unfairly served on active duty as a 1LT, while holding the rank of Captain within the Army Reserve. 4. The applicant provides the following documents: * Special Orders # 14 dated 30 January 1952 – reflective of his promotion to 1LT and assignment as the Executive Officer of Alpha Company, 195th Tank Battalion * Special Orders # 65 dated 20 April 1959 – reflective of his reassignment as the Executive Officer to the Company Commander position within Bravo Company, 2nd Brigade 134th CAR with a 1 May 1959 effective date * Reserve Appointment Certificate dated 29 January 1957 – reflective of his appointment as a Captain within the Army Reserve * Promotion Orders dated 9 November 1961 – reflective of his promotion to Captain effective 29 January 1957 * Nebraska Military Department Office of the Adjutant General response letter dated 20 December 2017 – reflective of their response to the applicant’s request for retroactive promotion to CPT wherein he was redirected to the ABCMR 5. A review of the applicant’s records shows the following on: * 18 May 1944 - he was inducted into the Army and served as an enlisted Soldier until he was appointed to the rank of 2LT (Infantry) in the NEARNG on 20 January of 1950 * 11 February 1952 – he received federal recognition of his promotion to 1LT effective 30 January 1952 in the NEARNG * 1 May 1959 – his unit reorganized from Armor to Infantry * 19 November 1959 – he transferred from Armor to Infantry effective 1 May 1959 * 30 November 1959 (Order# 217) – he resigned his commission from the NEARNG effective 1 December 1959 * 29 March 1960 – he transferred from the Army National Guard into the AR effective2 Dec 1959 as a 1LT (Infantry) * 24 May 1960 – he was identified as a first time non-select for promotion to CPT * 20 October 1960 he was officially branch transferred, within the USAR, from Infantry to Armor as a 1LT * 9 November 1961 he was promoted to CPT within the USAR with a 29 January 1957 date of rank * 2 March 1964 – he was selected for promotion to MAJ with a proposed effective date of 28 January 1964 * 5 March 1964 – he elected to decline his promotion to MAJ * 2 April 1964 - his declination of promotion to MAJ was approved * 17 May 1965 – he was promoted to MAJ within the USAR * 18 June 1968 – he retired from the USAR as a MAJ 6. Department of the Army (DA) Form 67-3 (Officer Efficiency Report) block 12 (Description of Rated Officer) covering the period of 1 October 1954 to 30 September 1955 indicates an inability to promote; position held: Training Officer/Platoon Leader. 7. DA Form 67-3 (Officer Efficiency Report) block 12 (Description of Rated Officer) covering the period of 1 Oct 1955 to 30 September 1956 indicates promotion recommendation; position held: Training Officer/Platoon Leader. 8. DA Form 67-4 (Officer Efficiency Report) Section II block 14 (Rating Officer) covering the period of 1 Oct 1956 to 30 September 1957 indicates a recommendation for promotion, but that there are no vacancies available at the next grade; position held: Executive Officer/Training Officer/Platoon Leader. 9. DA Form 67-4 (Officer Efficiency Report) Section II block 14 (Rating Officer) covering the period of 1 Oct 1957 to 30 September 1958 indicates that there are no vacancies available at the next grade; position held: Executive Officer/Training Officer/Platoon Leader 10 See below for REFERENCES. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief. The Board found that the applicant was promoted to captain in January 1957, but did not fill a captain position until 1 May 1959; he met the time in service and valid captain position requirement to be promoted to captain on 1 May 1959. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 1. amending his Nebraska Army National Guard Records to indicate he was promoted to the rank/grade of captain/O3 on 1 May 1959. 2. paying him any back pay due from 1 May 1959 to the date he was promoted to Major/O4, on 2 March 1964. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 135-155 (Reserve Components Promotion of Commissioned Officers other than General Officers) paragraph 35 states that each officer of the National Guard of the United States whose service has been honorable will, upon transfer to the Army Reserve, be advanced as a Reserve Officer to the highest permanent grade, not above Colonel, previously satisfactorily held in the Army or any component thereof. 3. Section 2 (Army Reserve) paragraph 10 (Effective Date of Promotion) states: a. Promotions normally will be effective on the date the letter of promotion is issued, unless the officer concerned expressly declines to accept it. b. Reserve Officer Personnel Act of 1954, the date of promotion may be effective in the past. In the event it is not administratively possible to issue letters of promotion on the date that the officer became eligible for promotion, the effective date for the promotion, as prescribed by these regulations, will be entered under “A” on the letter of promotion. 4. Section 2 para 11(f) states that a reserve officer who becomes a nonunit officer upon transfer from the National Guard of the United States or upon release from a unit in the Army Reserve may not be promoted for the first time thereafter until he has completed the total years of service prescribed below: * First Lieutenant (1LT) – 2 years * Captain (CPT) – 4 years 5. Mandatory consideration of nonunit officers for promotion to CPT and Major (MAJ) states: a. Irrespective of the existence of a vacancy in the next higher grade, each nonunit officer of the Army Reserve in the grade of 1LT, CPT or MAJ who has not previously been considered by a selection board as a nonunit officer under this paragraph or paragraph 16, will be considered by a selection board sufficiently in advance of the date he will have respectively, 4, 7, or 7 years of promotion service and the total years of service required in paragraph 11(c) so that such officer, if selected for promotion, may be promoted effective on the date he completes that service. b. When an officer in the grade of 1LT, CPT or MAJ, who has completed the 4, 7, or 7 total years of service prescribed in paragraph 11(c) is recommended for promotion under this paragraph, he may be promoted at any time to fill a vacancy. If not sooner promoted, he will be promoted, effective on the date he has 4, 7, or 7 years of promotion service, respectively, and the total years of service required by paragraph 11(c) regardless of a vacancy in the grade for which recommended. c. An officer in the grade of 1LT, CPT or MAJ, who becomes a nonunit officer upon transfer from an inactive status or from the National Guard of the United States or upon release from a unit in the Army Reserve, after he has promotion service equal to or greater than that required for consideration under a above, and the total years of service required by paragraph 11(d) will be considered by the next appropriate selection board, and, if recommended for promotion, will be promoted on the date the board reports its recommendation or the date he has the promotion service prescribed in (a) above, or the date he attains the total years of service required by paragraph 11(c), whichever is later. 6. Paragraph 22. (Promotion to Fill Authorized Unit Vacancies) states that vacancies in approved Army Reserve units are authorized as a basis for promotion. Such unit vacancies may be filled through promotion of the best qualified of the available officers assigned to the unit subject to the requirements stated below. The convening officer will place on a list the name of each officer assigned to the unit who is eligible for consideration under this paragraph and by reason of geographical availability, for consideration for promotion to fill the vacancy. To be considered for promotion and to be promoted, an officer is required to: * be in an active status * pass a final type physical examination within 1 year prior to promotion * have completed the minimum number of years of promotion service in grade as prescribed in paragraph 11(e) * be assigned to the proper branch //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003459 5 1