IN THE CASE OF: BOARD DATE: 24 February 2021 DOCKET NUMBER: AR20200003379 APPLICANT REQUESTS: * removal or any and all documentation associated with being Absent Without Leave (AWOL) * reconsideration for promotion to the rank of Lieutenant Colonel (LTC) / O- 5 by a Special Selection Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Standard Form 516 (Operation Report) dated 26 October 1978 * Standard Form 515 (Tissue Examination) dated 26 October 1978 * Standard Form 502 (Clinical Record) dated 28 November 1978 * Clinical Record Cover Sheet FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 he was operated on during the fall of 1978 for a bi-lateral hernia. Following completion of the surgery he was placed on convalescent leave for 30 days. He contests that there is a form within his records that refers to this period as him being AWOL, to which he denies was the case. He believes that this document precluded his promotion to LTC. He survived several Reduction in Force (RIF) actions during the drawdown when the Soviet Union collapsed, however he was never selected for promotion to LTC. 3. On 30 May 1978, Headquarters, United States Army Third Reserve Officer Training Corps (ROTC) Region published Order 95-17-A-545 ordering him to active duty no later than 6 November 1978. 4. On 7 June 1978 he was appointed a commission at the rank of Second Lieutenant (2LT) / O-1. He was subsequently placed on active duty on 19 June 1978 as an Armor Officer (12A). 5. A review of his DA Form 2-1 (Personnel Qualification Record) indicates the following promotion Date of Rank (DOR) timeline: * First Lieutenant (1LT) / O-2 – 7 June 1980 * Captain (CPT) / O-3 – 15 March 1982 Section V (Miscellaneous) indicates convalescent leave from 30 October 1978 through 27 November 1978 (30 days). 6. The applicant provides a Standard Form 516 (Operation Report) dated 26 October 1978 reflective of surgery performed involving a bilateral high ligation and Bassini repair. 7. The applicant provides a Standard Form 515 (Tissue Examination) dated 26 October 1978 reflective of the review of both the left and right hernia sacs. 8. The applicant provides a Standard Form 502 (Clinical Record) dated 28 November 1978 reflective of him being placed on a temporary profile resulting from the hernia surgery conducted on 26 October 1978. 9. The applicant provides a Clinical Record Cover Sheet reflective of the recommendation for 29 days of convalescent leave in relation to the hernia surgery performed on 26 October 1978. 10. On 7 June 1980 he was promoted to the rank of 1LT. 11. On 15 March 1982 he was promoted to the rank of CPT. 12. On 8 April 1990 the United States Total Army Personnel Command issued Order 53-020 promoting him to the rank of Major (MAJ) / O-4 effective 1 May 1990. 13. On 5 June 1995 the United States Total Army Personnel Command issued a Memorandum for Record (Mandatory Discharge or Retirement) reflective of the applicant being informed of his scheduled mandatory discharge or retirement date of 1 November 1995. This document further provides that under Section 632, Title 10, United States Code, the mandatory discharge or retirement of Regular Army (RA) officers twice non-selected for promotion to LTC. He acknowledged receipt of this notification on 22 June 1995. 14. On 6 July 1995 the United States Total Army Personnel Command issued order S128-8 directing that he be retired from active duty on 31 October 1995. The Separation Code reflected on this document indicates “RBN” which indicates “Sufficient Service for Retirement.” 15. On 31 October 1995 he was retired from active duty service at the rank of MAJ under the provision of Army Regulation 635-100 Chapter 4 (Voluntary Early Retirement). At the time of his retirement he had completed 17 years 4 months and 12 days of active federal service. Item 29 (Dates of Time Lost) is void of information. 16. On 1 November 1995 he was placed on the Retired List. 17. A review of the applicant’s submitted documents and his available personnel records are void of any information or evidence pertaining to him being AWOL during any period of his service. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his military service record and documents provided by the applicant. The Board determined there is insufficient evidence in the records to support the applicant’s request for reconsideration for promotion to the rank of Lieutenant Colonel (LTC) / O- 5 by a Special Selection Board. Furthermore, there is no evidence in the records to support the applicant’s claim that his unit had him as AWOL and it impacted his selection for promotion. The Board concluded there was insufficient evidence of an error or injustice which would warrant the applicant’s request for either removal of documents not found him his military records showing he was AWOL or reconsideration for promotion. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XXX 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. 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, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-100 (Personnel Separations – Officer Personnel) paragraph 4-9 (Voluntary Retirement in Lieu of Mandatory Retirement or in Conjunction with Scheduled Release from Active Duty) provides that an Regular Army officer who desires to retire voluntarily, in lieu of mandatory retirement as scheduled, for reasons associated with non-selection for promotion may request retirement and be retired voluntarily on the mandatory retirement date, or an earlier approved retirement date. Paragraph 4-16 (Retirement of Officers) provides that unless continued on active duty under the provisions of the Selective Continuation Program (10 USC 637(a) and AR 624-100) each officer who holds the grade of First Lieutenant, Captain or Major who has failed to be selected for promotion to the next higher grade for the second time, whose name is not on a list of officers recommended for promotion to the next higher regular grade, and who is eligible for retirement under any provision of law shall be retired under that law. If an officer is not eligible for retirement but is within two years of qualifying for retirement under provisions of this regulation, he or she will be retained on active duty until he or she is qualified for retirement and then be retired, unless sooner retired or discharged under another provision of law. 3. Army Regulation 600-8-29 (Officer Promotions), prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. Chapter 7 provides for SSBs. a. Paragraph 7-2 provides that a SSBs may be convened under Title 10, United States Code (USC), section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters Department of the Army discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (SSB required). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. Paragraph 7-3 (Cases not considered) provides that an officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the officer record brief or OMPF. It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them. c. Paragraph 7-11, officers who discover that material error existed in their file at the time they were non-selected for promotion may request reconsideration. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200003379 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1