RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           16 June 2005
      DOCKET NUMBER:  AR20040006603


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Kenneth W. Lapin              |     |Member               |
|     |Ms. Delia R. Trimble              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his separation status be
changed from involuntary to voluntary.

2.  The applicant states, in effect, that because of various professional
and educational requirements, he has made 11 moves since he left active
duty in 1989.  He claims that he has lived overseas in Romania for the last
six years and as a result of his frequent moves, he did not receive mail
informing him that he was a member of the Individual Ready Reserve (IRR),
or that he was being reviewed for promotion.  He claims to have been told
that his file was closed when he left active duty in United States Army
Reserve (USAR) in 1990.  He states that his separation document (DD Form
214) shows his separation from active duty occurred in Italy, where he took
up residency.  Since there were no Reserve units for him there, he told his
commander that he did not desire entry into the Reserves, and Item 6
(Reserve Oblig. Term Date) of his DD Form 214 shows no Reserve obligation
termination date.

3.  The applicant also states that in November 2003, when he attempted to
return to service, he was informed that a non-active Reserve program
existed and that he had been non-selected for promotion while in that
status.  He claims to have been overseas when the 1999 promotion board was
held and this is likely when the Army was trying to contact him.  He states
that he holds two master’s degrees and a bachelor’s degree in electrical
engineering from top schools.  His five years of military service included
service as a logistics officer and his superiors awarded him three Army
Commendation Medals (ARCOMs), an Army Achievement Medal (AAM) and the
Expert Field Medical Badge.

4.  The applicant states that it is with deep regret that he has a flaw in
his military record based on his being considered and not selected for
promotion, which makes him ineligible to return to further service.
Although factually true, this does not fully represent that he was not
informed of the promotion consideration, which would have allowed for an
accurate representation.

5.  The applicant provides the following documents in support of his
application:  Self-Authored Statement, DD Form 214, Passport, General
Officer Recommendation and Officer Evaluation Report (OER).
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 August 1999.  The application submitted in this case is
dated
8 July 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows that he was commissioned a second
lieutenant in the USAR and entered active duty on 1 June 1985.  The
appointment memorandum specified that his appointment was for an indefinite
term.  He was promoted to captain (CPT) on 1 December 1988, and he
continuously served on active duty until being honorably separated on 23
June 1990.

4.  The DD Form 214 issued to the applicant on 23 June 1990, shows he was
released from active duty (REFRAD) after completing 5 years and 22 days of
active military service.  Item 9 (Command To Which Transferred) contains an
entry confirming that the applicant was transferred to the USAR Control
Group (IRR), Army Reserve Personnel Center, 9700 Page Blvd, St. Louis,
Missouri upon his REFRAD.

5.  A Reserve Personnel Accounting System (RPAS) statement on file shows
the applicant remained in the USAR until 30 August 1999.

6.  In connection with the processing of this case, an advisory opinion was
obtained from the Chief, Special Actions Branch, Office of Promotions,
Reserve Components, Human Resources Command (HRC), St. Louis.  This
official confirms that the applicant was considered, but not selected for
promotion by the 1997, 1998 and 1999 Major (MAJ), Army Medical Department,
Reserve Components Selection Boards (RCSBs).  He further states that their
records show the applicant’s non-selection was due to his not meeting the
required military education.
7.  The HRC promotion official further states that although the applicant
claims he was not notified he was being considered for promotion, these
officers are identified six months prior to the convening date of the RCSB,
at which time a worldwide message is published announcing the RCSB.  He
further states that the officer has the responsibility to maintain a
current mailing address at all times, and to maintain an updated Official
Military Personnel File (OMPF).  He also confirms that the applicant does
not meet the military education requirement necessary for promotion to MAJ.
 He concludes by stating that by law, and in accordance with the Reserve
Officer Personnel Management Act, an officer twice not selected for
promotion must be removed from active status.  As a result, the applicant
was discharged from the USAR for this reason.

8.  On 8 November 2004, the applicant responded to the HRC advisory
opinion.  He states that he has no doubt the RCSB acted in good faith and
totally within the regulations when he was considered and not selected for
promotion in 1997, 1998 and 1999.  He claims his attempt to correct his
record is not an attempt to return to an inactive Reserve status, nor to
obtain a promotion, or gain personal benefit.  His action is an attempt to
return to active service to his country.  He states that had recruiters not
expressed such certainty that he would be picked up, he would not be
pursuing this action.  He is acting on information that it has become more
difficult to find high quality officers for active service in the War on
Terror.  The applicant further states that in none of the dialog thus far,
has anyone told him how he was supposed to know he had a further obligation
to the Reserves.  He claims all blocks of his DD Form 214 were completed in
1990, which implies that his discharge was complete at the time.  He
further indicates that there is nothing written in the DD Form 214 remarks
block that would inform a Soldier of his entrance into the IRR, and this
information is not anywhere on the form.

9.  The applicant provides a letter of recommendation from the Deputy
Director of Logistics, a lieutenant colonel, Walter Reed Army Medical
Center, dated
17 January 1991.  In this letter, the LTC attests to the applicant’s
outstanding duty performance and indicates his departure would be a
significant loss to the military service.  He also provides a letter of
recommendation from a retired major general, dated 28 June 2004.  This
officer gives his highest recommendation that the applicant be allowed to
return to active duty.  He further indicates the applicant was an
outstanding officer who was a credit to his unit, the Army and our Country.
 The applicant also provides a letter of recommendation from his employer,
who states the applicant is a competent professional and trusted colleague.
 His employer further comments on his outstanding character and traits.

10.  Title 10 of the United States Code, section 14505 provides the legal
authority for the separation of Reserve officers in the rank of CPT who
twice fail to be selected for promotion to the next higher grade.  It
states, in pertinent part, that a Reserve CPT who has failed to be selected
for promotion to the next higher grade for the second time shall be
separated not later than the first day of the seventh month after the month
in which the President approves the report of the board which considered
the officer for the second time.

11.  Army Regulation 140-10 (Assignments. Attachments, Details and
Transfers) prescribes policies, responsibilities, and procedures to assign,
attach, detail, remove, or transfer USAR Soldiers.  Paragraph 7-4 provides
the policies for removal from the USAR based on non-selection for
promotion.  It states, in pertinent part, that officers in the ranks of
captain, major and lieutenant colonel, who are twice not selected for
promotion will be removed from the USAR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he was unaware that he maintained a
connection with the USAR and that he was not notified when he was
considered for promotion and the supporting evidence he provides were
carefully considered.  However, by law and regulation, a Reserve officer in
the grade of CPT who is twice not selected for promotion must be discharged
from the USAR.

2.  While it is clear that the applicant lived overseas and made many
moves, this factor alone is not sufficiently mitigating to warrant granting
the requested relief at this time.  The applicant contends he had no idea
he retained a service obligation, and that the DD Form 214 he received upon
his separation from active duty gave no indication he was still in the
Reserves.  However, his appointment memorandum stipulated that his
appointment was for an indefinite term, and Item 9 of his DD Form 214
clearly indicates he was being transferred to the USAR Control Group (IRR),
Army Reserve Personnel Center, 9700 Page Blvd, St. Louis, Missouri upon his
release from active duty.

3.  Further, as a commissioned officer in the Army with over five years of
service, he knew or should have known that he retained his commission and
Reserve officer status until either he, or the Army took some action to
discharge him.  As a result, there is an insufficient evidentiary basis to
support a conclusion that there was any error or injustice related to his
discharge.  Therefore, it would not be appropriate to grant the requested
relief at this time.
4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 August 1999. the date of his
discharge from the USAR.  Therefore, the time for him to file a request for
correction of any error or injustice expired on 29 August 2002.  However,
he did not file within the 3-year statute of limitations and has not
provided a compelling explanation or evidence to show that it would be in
the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RJW _  ___KWL_  __DRT__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Raymond J. Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040006603                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/16                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1999/08/30                              |
|DISCHARGE AUTHORITY     |AR 135-175                              |
|DISCHARGE REASON        |Promotion Nonselection                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]