IN THE CASE OF: BOARD DATE: 2 March 2010 DOCKET NUMBER: AR20090006789 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, in effect, removal of all documents and references to promotion non-selection for major while he was serving on active duty in support of Operation Enduring Freedom from 24 November 2001 to 19 July 2002. 2. The applicant states, in effect, he received notification of the first Reserve Component Selection Board (RCSB) that considered him for promotion too late to submit a packet. He states that he was serving in a combat zone at the time and upon his return from active duty he was unable to complete the officer advanced course prior to the convening date of the second RCSB that did not select him for promotion to major. He argues that he submitted a request for a military education waiver; however, his request was received 3 hours after the RCSB convened and was not considered. He adds that to the best of his knowledge, the military did not officially notify him of the first promotion non-selection. 3. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 July 2007; a second time non-selection memorandum; and miscellaneous military documents in support of this application. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. The American Legion, acting as the applicant's counsel, requests that it be appropriately informed of all actions taken in this case. 2. Counsel provides no additional documentary evidence in support of this 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. After having had prior enlisted service in the U.S. Army Reserve (USAR), the applicant accepted a commission in the USAR on 21 May 1989 and was promoted to captain on 12 November 1996. 3. The DD Form 214 provided by the applicant shows he deployed in support of Operation Enduring Freedom and served on active duty from 7 December 2001 to 27 June 2002. 4. The applicant's first major promotion non-selection notification letter is not on file. On 7 August 2003, the applicant was notified that he had been considered but not selected for promotion to major and based on this being his second non-selection, he would be discharged not later than 1 February 2004. 5. The applicant was honorably discharged from the USAR on 1 February 2004. 6. In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, U.S. Army Human Resources Command (HRC), St. Louis, Missouri. This official states the applicant was considered for promotion to major by the 2002 Department of the Army RCSB that convened in March 2002, but was not selected due to not meeting the military and civilian education requirements at the time of the selection board. 7. The HRC advisory opinion further indicates the applicant was again considered and not selected for promotion to major by the 2003 RCSB that convened on 3 March 2003 and that he still did not meet the military education requirement at that time. It further notes the applicant submitted a request for a military education waiver, but it arrived after the convening time for the RCSB and, as a result, its office did not have the authority to grant the waiver. It further indicates the applicant was notified and furnished the appropriate form to apply for a waiver through the ABCMR at that time; however, there is no indication he ever attempted to obtain a waiver from the ABCMR or that he ever applied to the ABCMR for any type of relief until now. Further, there is no indication the applicant ever completed the military education requirement. 8. The applicant was provided a copy of the HRC advisory opinion in order to have the opportunity to respond or rebut its contents. To date, he has failed to reply. 9. Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States and commissioned and warrant officers of the U.S. Army Reserve. Table 2-1 states that the service requirement for promotion from captain to major by a mandatory board is 7 years in the lower grade. In pertinent part, it states that to qualify for selection, commissioned officers must complete the educational requirements in table 2-2 not later than the date the selection board convenes. 10. Army Regulation 135-155, table 2-2, states that to qualify for promotion from captain to major the officer must complete any officer advanced course not later than the day before the selection board convening date. It also states that Headquarters, Department of the Army, is the approval authority for all requests for exception of nonstatutory promotion requirements. Requests for exception to nonstatutory promotion requirements will be forwarded to Headquarters, Department of the Army, Office of Promotions (Reserve Components). Requests must be submitted in time to be approved prior to the convening date of the applicable board. 11. Army Regulation 135-155 also specifies that promotion reconsideration by an special selection board (SSB) may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at that time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. DISCUSSION AND CONCLUSIONS: 1. The applicant's request to have all references to his non-selection for promotion to major during the period he was on active duty deployed to a combat zone has been carefully considered. However, there is insufficient evidence to support this claim. 2. The applicant was twice not selected for promotion to major due to not meeting the military education requirement. There is no evidence in the applicant's records and he provides none to show he ever completed the military education requirement or that he was denied the opportunity to apply for a waiver. 3. The evidence shows the applicant applied for a waiver after the second RCSB convened and as a result the waiver could not be processed or approved by HRC. He was properly informed of his option to apply to this Board for relief; however, he failed to do so in a timely manner. There is no indication that he ever submitted an application to this Board requesting a waiver of the military education requirement and/or reconsideration for promotion by an SSB. 4. Announcement messages identifying criteria and requirements are made well in advance of convening dates of RCSB's and are transmitted worldwide, to include deployed areas. The applicant was or should have been aware of his eligibility for promotion consideration and of the requirements well in advance of both RCSB's that did not select him for promotion. Further, he never completed the military education requirement. His assignment to a combat zone for less than 1 year is not a viable excuse for his failure to meet this requirement in the more than 14 years he served prior to his first consideration for promotion to major. As a result, absent any evidence of error or injustice related to his promotion consideration, there is an insufficient evidentiary basis to support granting the requested relief. 5. 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 this requirement. 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) AR20090006789 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090006789 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1