ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20180004121 APPLICANT REQUESTS: promotion to Major (MAJ). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * letter from Human Resources Command (HRC) * Officer Evaluation Reports (OER) * letter of thanks * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) FACTS: 1. The applicant did not file within the time frame provided in the statute of limitations; however, the ABCMR has elected to conduct a substantive review of this case and has determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He is nearly 80 years old and was born on 18 March 1938. He enlisted in the Air Force when he was 17 years old when he didn't shave and still had pimples and acne. He took his oath of office on 29 March 1955. Even after 62 years, he has never been relieved of this oath. b. When he was 16 years old, he was classified as a juvenile delinquent. He was placed on harsh probation by the judge and told he could either go to reform school or join the service when he was 17 years of age. Any violation of his probation would nullify the offer to enlist, and he would be sent to reform school. For three or four months, he was an ideal kid. c. He wasn't a bad kid. He didn't kill anyone, rob, steal, rape, maim, or hurt anyone. His crime was truancy for cutting class and going to the Town Hall Burlesque Theater. d. He served in the Air Force from 29 March 1955 to 10 December 1963. He did a branch transfer to the Army after he did not get a promotion to E5 in the Air Force. He was the top candidate for promotion to E-5, but a major promoted the second person in line because that person worked for the major and was going to get married. The major wanted to make sure he had all the benefits of a married E-5. However, he thought he deserved the promotion and was told he would get the next promotion. When he complained to the major, the major yelled at him and told him to get out of his office. He was encouraged to see the Inspector General about the issue, but going over someone else's head didn't appeal to him. At that point, he transferred to the Army, which was a blow to his pride. e. He is seriously hoping he wasn't unfairly passed over for promotion to major and believes he deserves the promotion as much as he did the promotion to E5 in the Air Force. If he was a bad enlisted Soldier, he never would have been accepted to Officer Candidate School (OCS). f. After 8 years of being in the Air Force, he had to take a reduction to Private First Class/E3 when he joined the Army. He went through basic training and lived in the barracks and did all the things a young recruit would do. It was a humbling experience for him to be placed with the young kids. He was considered the old man in the basic training and was able to share his experiences with the Soldiers. One of the Soldiers commented to him that he must really love the Army and his response was yes, he did and joining the Army was worth it and paid off. g. He did well enough in basic training to be able to apply for and be accepted into OCS. He was commissioned as a Second Lieutenant (2LT) on 15 February 1965. At OCS, he was selected to be the Bivouac chain leadership and to represent his platoon on the honor counsel. He had proved to his platoon member of his integrity and veracity by taking responsibility for his actions. h. He volunteered for Vietnam, and he was the Day Operations Staff Reporter to the Korean Capitol Division as a 2LT. He believes he received a medal for doing this job and has contacted the Korean Embassy but has not heard anything about the award. i. After Vietnam, he was reassigned to the Committee Group at Fort Lewis, Washington to train young Soldiers for Vietnam. His OER for that time period speaks for itself. During that time, he went to work when it was dark and came home when it was dark. Everyone in the training group wore the Combat Infantryman Badge and did their very best to train the Soldiers on how to stay alive. They shared experiences with the Soldiers, and he hopes to this day that maybe one of those Soldiers he trained came back alive because of something he told them. j. He then was a basic training company commander. There he only signed paperwork and there was really no decision making. He spent every available moment at the range to make sure the Soldiers were getting quality training. He wanted to ensure his company was getting proper training, but felt this company command time was not challenging for him and doesn't think it should count as command time. k. He then went to be the company commander for a company in Korea. He humbly suggests he was a very good company commander while in Korea. Not many officers could have accomplished the missions he had to accomplish with his company. He was happy when he found out he was going to command a company in Korea, but his happiness was short lived because his company was short of many Soldiers and the person he was replacing as company commander didn't know how many Soldiers were in the company. At the time he was in Korea, it was known as the Forgotten Second Korean War because of the casualty count. The mission he was assigned was of voluminous magnitude and just by accomplishing the mission, he should be promoted to major. l. He asks the Board to place themselves in his shoes of a company commander who is supposed to have 200 Soldiers assigned and only has eighty, thirty of which are Korean Soldiers bedded with American Soldiers and who know very little English. He had a first sergeant who was an alcoholic, all the battalion mess halls were consolidated, and 70 percent of his tactical vehicles were dead lined. He had three other officers in his company who were duds with no experience and no training, and he didn't know if he could count on his 9 noncommissioned officers. Only 3 of them had any longevity in Korea and could perform under combat conditions if necessary. m. He received orders to move out to provide external security for a Special Ammunitions Depot. There was not a staff briefing for this mission, there were no battle or operations plans, just the order. The reason his company was tasked was because some commandos from North Korea infiltrated the demilitarized zone. The raid was called Blue House Raid, Korea. He's not sure why his company was chosen for the job since there were West Point graduates and Reserve Officer Training Company officers in Korea commanding companies. n. His company fell under another battalion for operational control and was told his company would be brought up to full strength with equipment and Soldiers. It was a great opportunity for the other companies to get rid of the Soldiers they didn't want, but he never looked at the Soldiers as misfits. Everyone in his company continued to Soldier and Soldier well. He worked for 49 straight days and spent 19 hours in the field, 1 hour on administrative matters, and 4 hours of sleep a day. o. He was having to make multiple decisions a day. He was developing plans in the event of an attack or assault and was doing all of this with no help. His operation plans were solid and approved by all the higher headquarters. He had high echelon people wanting to get briefed, and he was being taken away from doing his job so much he started having his executive officer brief anyone who was under a two-star general. p. He has problems with one colonel who was an infantry officer. The colonel wanted to know how the he identified his night marking sticks from the fox hole. The colonel wanted the fire sticks out to 300 meters, but he stated they couldn't see 300 meters at night and asked him if he wanted them to shine lights on them. The crowd laughed and the applicant believes the colonel was embarrassed by this. The colonel chewed him out for this and threatened to relieve him of his command because he didn't know what he was doing. He called the general and the general said he would take care of it because he [the applicant] was doing a fantastic job. q. His battalion executive officer (XO) didn't like the way he ran his company. He thinks the XO was jealous of him. When the battalion commander was out of the office, he was the acting battalion commander and assumed responsibility of all of the nuclear weapons in Korea. The XO thought he was not qualified because he was only a company grade officer [captain]. r. He worked with a Military Police Commander on how to set up a quick reaction force because his company was spread out. When his plans were inspected, the inspectors sounded the alert to see how his company responded and the plans that were implemented had worked and the inspectors said it was a sound plan. s. After his Korea assignment, he went to the advance course. This was not recorded on his record and why he was not promoted to major. After his advance course he was assigned to the Presidio in San Francisco, California for being honest and as a reward. The Presidio was a premiere assignment. Every officer applied for it on their dream sheet, but it never was to be. t. He got in trouble in his advance course for missing a class. He had gone back to his room after an exam, fallen asleep and didn't wake up for the class. He was called by his battalion commander and asked if he was in the class and he was honest and told him no. He had to go see the battalion commander in his office and when he asked if he had been in class, he told him no and that there was no excuse for missing the class. He then had to see the general and was told if he made any more mistakes, he would be kicked out of school. When he talked to a friend about the incident, the friend said he could have written his name down as if he was in the class. He told him that wasn't his style. After this incident, he will still be assigned to the Presidio in San Francisco, California. u. He sincerely believes he deserves promotion to MAJ and he's submitted documents for the Board to consider. He hopes human error does not prevent him from getting promoted to MAJ like it prevented him from getting promoted as an enlisted Airman in the Air Force. He asks the Board to envision themselves in his shoes when making their decision. v. He also states he deserves the promotion to MAJ because he did the same exact work as a Lieutenant Colonels, Colonels, and MAJs when he was stationed at the Presidio. He was a company grade officer working in a vast sea of higher ranking officers and civilians. He also worked with high ranking officers of the Navy and made plans with their counterparts. He was the only CPT on the on call roster. Oftentimes, the Staff Duty Officers would call him if there was need for an immediate response to a situation instead of calling the field grade officers. He points the Board to his OERs to support his claim. w. He also points the Board to his OER dated 31 January 1972 where it states "promote ahead of his contemporaries" and he was given a 98 percent rating over other officers. His rater and senior rater both stated he performed his duties in an outstanding manner and he exhibits an unusually high degree of competence. x. He draws the Board's attention to a letter dated 9 October 1970 from the California Department of Conservation which supports the fact he performed the duties of a field grade officer. He was also a top secret control officer for the 6th Army operations. He and one other individual were the only people responsible for all the top secret and secret documents for 6th Army which was an awesome responsibility. y. He suspects the reason his advance course was not put into his records is because his records have been flagged because of missing his class at advance course. He does not believe that is a good and valid reason for having his records up to date. He completed the course, which was a requirement for promotion, and he feels it was wrong that his records were not updated. He wishes to reverse the injustice he received. z. He hopes the Board sees the evidence and feels it is enough to promote him. He should have been promoted to MAJ and probably would have been if his records were updated. The lack of updated records were through no fault of his own but was a miscue by the Army and he should not have suffered the consequences of the miscue. He is 80 years old and gave the best part of his life to the military. He is now a 100 percent disabled veteran from dedicating his life to the military. He deserves the promotion. 3. The applicant provides OERs for the Board's consideration. They state, in part: * he is a mature, cool headed officer who is fiercely loyal to both his superior and his subordinates * he had a loudspeaker on his back while in Vietnam and it was shot, and he calmly removed the set, repaired the damage while under fire, and continued to support the operation * his manner of performance in accomplishing difficult missions can unquestionably be rated as outstanding * he took college courses at night to increase his formal education * he possesses maturity, judgement, tact, dependability, and self-discipline to a greater extent than his contemporaries * his rater would fight to have him serve with him in any capacity * he is an outstanding officer * he possesses a quick and agile mind and appears to thrive on tasks which require increased initiative and minimal supervision * he has performed his duties in an outstanding manner * he exhibits an unusually high degree of professional knowledge and competence for an officer of his rank 4. The applicant provides a letter of thanks for assisting with fires in Southern California in 1970, which states he was of great assistance in getting the helicopter operation underway. His continued concern and interest in events were reassuring. He states everyone except him was a colonel. He did the same work and even better than the colonels. 5. The applicant’s service record shows he: * joined the Air Force prior to enlisting in the Army * went through OCS and was commissioned as an officer * was promoted as a Reserve commissioned officer of the Army to the rank of CPT effective 17 March 1970 * received a letter from the Office of the Adjutant General dated 10 January 1972 that stated the strength of the Army must be reduced, and he was selected for early separation from active duty. He was issued a DD Form 214 relieving him from active duty effective 26 April 1972 * completed his service as an active duty Staff Sergeant until he was retirement eligible where he retired from the Army effective 31 March 1976 * received notice on 14 July 1976 that he was considered for promotion to MAJ by a Reserve Selection Board, but he was not selected for promotion. * was notified on 10 October 1985 that he had been advanced on the retired list effective 27 September 1985 to the grade of CPT, which was the highest grade he held satisfactorily * received a letter dated 9 September 2013 from the Army Grade Determination Review Board pertaining to advancement on the Retired List, possibly to MAJ which states his records reflected he was advanced on the Retired List from E-6 to O-3, effective 27 September 1985, stating that grade was the highest active duty grade he satisfactorily held * received a letter dated 13 September 2017 from the Army Human Resources Command (HRC) regarding his request for promotion consideration and HRC stated for historical purposes, the Army has an interest in maintaining the accuracy of its records. The information contained therein should reflect the conditions and circumstances that existed at the time the records were created and under which the military service was performed 6. There is no evidence in the applicant's records of his promotion to MAJ. 7. The applicant's service records contain OERs which state, in part: * with additional experience he will perform exceptional service for the Army * he's demonstrated exception potential * promote along with contemporaries * performance of this duty equaled by very few officers * his performance of duty has been satisfactory, but at times subordinated to that of his personal leisure * he has the potential to be an outstanding officer providing he placed more emphasis on his military responsibilities * toward the end of his tour he tended to subordinate his duty requirement to his personal desires * promote this officer to the next higher grade ahead of his contemporaries * performs this duty better than most officers 8. Army Regulation 624-100 (Promotion of Officers on Active Duty), in effect at the time, the names of officers recommended for promotion are placed in order of seniority on recommended lists, published by Headquarters, Department of the Army with promotion seniority indicated by sequence numbers. 9. The ABCMR may not appoint an officer to a higher grade. That authority is reserved for the President and has not been delegated below the Secretary of Defense. 10. The ABCMR may correct an officer's date of rank/effective date of rank when a proper appointment has already occurred. a. Title 10 USC 624 and 741 provide for situations in which properly appointed officers are provided "backdated" dates of rank and effective dates to remedy errors or inequities affecting their promotion. The authority to remedy these errors or inequities is given to the Service Secretaries. b. DODI 1310.01 (23 August 2013) provides that a Service Secretary may "adjust the date of rank of an officer appointed to a higher grade if the appointment of that officer to the higher grade is delayed by unusual circumstances." c. What constitutes "unusual circumstances" will, generally, be for the Board to determine based on the available evidence, which often includes an advisory opinion. d. There may be cases (specifically correction of constructive credit that affects original appointment grade) where relief is not possible because an appointment to a higher grade has not yet occurred. In those cases, the Board should be advised of the limits of its authority. The Board may also be advised that the applicant can submit a request for reconsideration after he or she has been appointed to a higher grade. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board discussed the applicant’s statement and documents, evidence showing he was not selected for promotion to Major, his retirement as a Captain and the authorities of the Board to promote officers. The Board determined that the evidence was insufficient to grant relief, finding no evidence of an error or injustice based on the documents provided or available for review. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2 July 2019 Xr Chairperson Signed by: 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. REFERENCES: 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. 2. Army Regulation 624-100 (Promotion of Officers on Active Duty), in effect at the time, prescribed the policies and procedures for promotion in the Army of the United States of commissioned officers. The names of officers recommended for promotion are placed in order of seniority on recommended lists, published by Headquarters, Department of the Army with promotion seniority indicated by sequence numbers. It states: a. Promotion selection boards will base their selections on impartial consideration of all officers in the zone. They will consider all factors, including ability, efficiency, seniority; and age. Selection boards will not divulge their reasons for the selection or nonselection of any individual. b. Selection boards will use the "best qualified" method of selection for promotion to major through colonel. Under this method, selection boards recommend not to exceed a specified number of officers whom they consider the best qualified to meet the needs of the Army of all fully qualified officers in the zone of consideration. c. Selection board action is administratively final. Reconsideration for promotion will be afforded only in those cases where material error was present in the records of an officer when re viewed by a selection board. This determination will be made by Headquarters, Department of the Army. d. The names of officers recommended for promotion are placed in order of seniority on recommended lists, published by Headquarters, Department of the Army with promotion seniority indicated by sequence numbers. e. Regular Army commissioned officers recommended for permanent promotion will be nominated by the President to the Senate, at which time their names will be published in a recommended list circular. The names of warrant officers recommended for promotion will be published in a recommended list circular following approval by the Army Vice Chief of Staff. 3. The ABCMR may not appoint an officer to a higher grade. That authority is reserved for the President and has not been delegated below the Secretary of Defense. 4. The ABCMR may correct an officer's date of rank/effective date of rank when a proper appointment has already occurred. a. Title 10 USC 624 and 741 provide for situations in which properly appointed officers are provided "backdated" dates of rank and effective dates to remedy errors or inequities affecting their promotion. The authority to remedy these errors or inequities is given to the Service Secretaries. b. DODI 1310.01 (23 August 2013) provides that a Service Secretary may "adjust the date of rank of an officer appointed to a higher grade if the appointment of that officer to the higher grade is delayed by unusual circumstances." c. What constitutes "unusual circumstances" will, generally, be for the Board to determine based on the available evidence, which often includes an advisory opinion. d. There may be cases (specifically correction of constructive credit that affects original appointment grade) where relief is not possible because an appointment to a higher grade has not yet occurred. In those cases, the Board should be advised of the limits of its authority. The Board may also be advised that the applicant can submit a request for reconsideration after he or she has been appointed to a higher grade.