BOARD DATE: 7 February 2013 DOCKET NUMBER: AR20120008525 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 rescission of his second non-selection for promotion to major. 2. The applicant states his promotion packet was submitted for consideration during the period in which he was processing for retirement. He claims he does not have a complete set of records to verify his claim; however, he believes it is relevant as he hopes to reenter the New Jersey Army National Guard (NJARNG) as a warrant officer. 3. The applicant provides no documentary evidence in support of his request. 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 prior enlisted service in the ARNG, the applicant was appointed a second lieutenant in the U.S. Army Reserve (USAR) and granted Federal recognition in the NJARNG on 9 July 1988. He was promoted to first lieutenant on 8 July 1991 and to captain on 26 September 1995. 3. The record contains a memorandum, dated 16 July 2002, that notified the applicant he had been considered but not selected for promotion to major by a Department of the Army (DA) Reserve Components (RC) Mandatory Promotion Selection Board. 4. On 3 March 2003, a DA RC Mandatory Promotion Selection Board convened to consider eligible officers for promotion to major. 5. On 1 July 2003, the applicant was reassigned to the Retired Reserve. There is no indication the applicant began this process prior to July 2003 or that he ever attempted to remove his record from consideration for the promotion selection board that convened in March 2003. 6. On 7 August 2003, a second promotion non-selection for promotion memorandum informed the applicant he had again been considered and again not selected for promotion to major by a DA RC Mandatory Promotion Selection Board. 7. In connection with the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB) Acting Chief, Personnel Policy Division. The advisory official recommended disapproval of the applicant’s request. He states the applicant asserts his packet went before the DA RC Mandatory Promotion Selection Board during the time he was processing for retirement in 2003. The record shows the board convened on 3 March 2003, well in advance of the applicant’s retirement. He states the applicant provides no proof that he requested the promotion packet be removed from consideration. He further indicates the applicant was notified of the second non-selection on 7 August 2003, and he should have raised this issue at the time if in fact his promotion consideration was in error. 8. On 7 December 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. 9. Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File. Appendix B provides a list of documents authorized for filing in the AMHRR. This list includes Officer Non-Selection Letters. It states, in effect, letters of notification to officers considered for promotion but not selected will be filed in the AMHRR and/or Interactive Personnel Electronic Records Management System (iPERMS). DISCUSSION AND CONCLUSIONS: 1. The applicant’s request to rescind his second promotion non-selection and remove the non-selection letter from the AMHRR because he was not selected during his retirement processing has been carefully considered. However, there is insufficient evidence to support this claim. 2. By regulation, letters of officer non-selection for promotion will be filed in the AMHRR/iPERMS. The evidence of record and independent evidence submitted by the applicant fails to show he was undergoing retirement processing when the promotion selection board convened in March 2003, or that he ever attempted to remove himself from promotion consideration by the selection board. 3. In view of the foregoing, there is an insufficient evidentiary basis to support granting the requested relief. 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) AR20120008525 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120008525 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1