RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 August 2005
      DOCKET NUMBER:  AR20040008985


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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, reconsideration of his previous
request for promotion to captain and back pay.  He also request that he be
allowed to retroactively recover lost income that would have been afforded
to him had his records not been flagged and been available for promotion
consideration from 1988 through 2001.  He further requests that he be
returned to active Reserve status or that he be allowed to retire in the
rank of captain with all recovered income from his date of rank as an
officer until 17 January 2001, the date that he would have retired had he
been provided the opportunity to complete his promotions on time.

2.  The applicant states, in effect, that he was considered by a board of
officers in November 1991 which recommended that the suspension of
favorable personnel action imposed on him be lifted; that he should be
retained in active service; and that he should be given credit for
completion of the Adjutant General Officer Basic Course (AGOBC) 13-88 or be
given the opportunity to complete course requirements.  He states that in
1997, this Board granted relief in his case to have his records corrected
to show that he received a completion diploma; however, the recommendation
for retention and promotion was not granted.  He states that he should have
been granted a promotion to captain (based on the 1990 – 1991 criteria) and
that he should have been retained in the Reserve rather than being allowed
to be involuntary separated based on a technicality.  He states that
between 1988 and 1991 he should have been considered twice for promotion
and that the flagging action resulted in an automatic honorable discharge
and involuntary separation from the Army Reserve.  He states that from 1997
to 1999, he has made attempts to have his records reviewed by a special
promotions board; however, the promotions board denied him the opportunity
to acquire his next rank to captain even with a signed military document
stating that he would be accepted into the 17th Psychological Operations
Battalion.  He concludes by stating that not only should the
recommendations of the convening board of officers be met, his request to
reverse this unjust domino effect caused by the unfavorable actions being
brought against him should be granted.

3.  The applicant provides in support of his application a copy of a Report
of Proceedings by Investigating Officer/Board of Officers; a copy of an
undated letter addressed to the President of the United States of America;
a letter with the greeting "Dear Mr. President:" dated 24 January 2002; and
a copy of the previous decision made by this Board.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 1 March 1999.  The application submitted in
this case is dated 21 September 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.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number AC97-
05454, on 18 June 1997.

4.  The available records show that the applicant served in the Army
Reserve in the Simultaneous Membership Program while he was enrolled in the
Reserve Officers Training Corps.  On 10 June 1984, he accepted an
appointment as a Reserve commissioned officer and he was assigned to the
85th Training Division.

5.  The applicant attended AGOBC from 15 August 1988 through 16 November
1988 and he failed to achieve course standards.  His Academic Evaluation
Report showed that he was eliminated from AGOBC 13-88 for disciplinary
reasons, but completed all course work.  The Department Director stated in
a Student Disposition Form that the applicant “has met the established
academic requirements for graduation” and that the applicant’s elimination
based on an “apparent negative leadership trend” only two days before
graduation was “highly questionable”.

6.  The available records show that the applicant was serving in the rank
of first lieutenant when he was notified on 1 February 1991, that a recent
Reserve Component Selection Board (RCSB) had considered him for promotion
to the next higher grade and that the board did not recommend him for
promotion.  In



the notification letter he was informed that this consideration constituted
his first passover for promotion to the rank of captain and that one of the
many possible reasons for his nonselection may have been that his records,
when reviewed by the Department of the Army (DA) RCSB, did not reveal that
he had completed the military education requirement.  The applicant was
further informed that he would be considered again by a new board with
other officers who met the criteria for the next zone and that if he was
not selected by the next year's board, he would be subject to removal from
an active status in accordance with applicable regulations.

7.  On 19 November 1991, as a result of his elimination from AGOBC, a board
of officers convened to determine whether the applicant should be retained
in the Army.  The board found that the evidence did not substantiate the
charge of failure to meet course standards and that there was no evidence
that the school took any action to correct the applicant's alleged moral or
professional dereliction of duty.  The board of officers recommended that
the suspension of favorable personnel action be lifted; that he be retained
and allowed to substantiate course completion; and that he be given an
opportunity to complete course requirements.  The available records fail to
show that action was ever taken by the appointing authority on the
recommendation that was made by the board of officers.

8.  Although the complete record is unavailable for review at this time, it
appears that one year later, the applicant was again considered for
promotion to the rank of captain by a DA RCSB and he was nonselected.

9.  On 10 April 1992, as a result of being twice passed over for promotion,
the applicant was honorably discharged from the Ready Reserve and he was
transferred to the United States Army Reserve Control Group
(Reinforcement).

10.  On 4 October 1994, the applicant submitted an application to this
Board requesting that his records be corrected to show that he was promoted
to the rank of captain with entitlement to all back pay; that he be
furnished a diploma for the successful completion of AGOBC 13-88; and that
his Service School Academic Evaluation Report (AER) be corrected to show
that he achieved course standards.

11.  During the processing of his previous case, information coordination
was made with the Chief of the Promotion and Notifications Branch, Office
of Reserve Components Promotions.  The chief stated that he was not
successful in attempts to find the completed action by the board of
officers and the convening authority at the Army Reserve Command or the
archives maintained by the General Services Administration.  The chief
stated that it was his professional judgment that, in the absence of action
by the convening authority on the recommendation of the board of officers,
the applicant had been effectively denied relief recommended by the board;
therefore, an inequity existed which could only be remedied by crediting
him with completion of AGOBC 13-88, (thereby meeting his military education
requirement) and reconsidering him for promotion to captain.

13.  On 18 June 1997, this Board granted full relief in the applicant's
previous case by directing that he be issued a diploma showing that he
successfully completed AGOBC 13-88; that his Service School AER for the
period covering 15 August 1988 to 16 November 1988 be corrected to show
that he achieved course standards; and by expunging items number 15 "HAS
THE STUDENT DEMONSTRATED THE ACADEMIC POTENTIAL FOR SELECTION TO HIGHER
LEVEL SCHOOL/TRAINING" AND 16 "COMMENTS" in their entirety from his Service
School AER.  This Board also directed that following administrative
implementation of the foregoing, that his records be submitted to duly
constituted Special Selection Boards for consideration for promotion to the
rank of captain under the 1990 and 1991 criteria.  In its recommendation,
the Board stated that "if he is selected for promotion to the next higher
grade" his records should be corrected to show that his honorable discharge
was void and of no force or effect; that he was promoted and assigned an
appropriate date of rank; and that he was awarded 50 retirement points
(based on 21 drills, 14 points for annual training and 15 points for
membership) each year for all of his otherwise years, with appropriate pay.

14.  On 22 October 1997, the applicant was issued a replacement diploma for
the AGOBC 13-88.  He was also furnished a corrected copy of his Service
School AER, which shows that he achieved course standards and items number
15 "HAS THE STUDENT DEMONSTRATED THE ACADEMIC POTENTIAL FOR SELECTION TO
HIGHER LEVEL SCHOOL/TRAINING" AND 16 "COMMENTS" were expunged in their
entirety from his Service School AER.

15.  The applicant's records show that by 1998, he had twice been
considered and not selected for promotion by DA Special Selection Boards.
In a letter dated 1 March 1999, the applicant was informed that, as
directed by this Board, three Special Selection Boards had considered his
file; that he was not selected for promotion; and that he was not entitled
to any additional considerations by Special Selection Boards.



16.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve officers.  The regulation provides, in pertinent part,
that reconsideration by a Special Selection Board 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 the time the individual
was considered, a reasonable chance would have resulted that the individual
would have been recommended for promotion.  The regulation further
specifies that boards are not required to divulge the proceedings or the
reason(s) for nonselection, except where an individual is not qualified due
to noncompletion of required military schooling.

DISCUSSION AND CONCLUSIONS:

1.  The actual question in this case is whether or not this Board's
previous recommendation was acted upon as directed.  This Board believes
that the recommendation was properly acted upon.

2.  As directed, he was issued a diploma showing that he successfully
completed AGOBC 13-88; his Service School AER for the period covering
15 August 1988 to 16 November 1988 was corrected to show that he achieved
course standards; the information contained in items number 15 and 16 on
his Service School AER was entirely expunged; and his records were placed
before the appropriate Special Selection Boards for consideration for
promotion to the rank of captain under DA RCSB 1990 and 1991 criteria.

3.  The applicant's contention that he should have been promoted either by
this Board or by one of the Special Selection Boards has been noted.
However, the decision made by this Board on 18 June 1997 clearly states "if
he is selected for promotion to the next higher grade" and he was not
selected.  The Board properly directed that the derogatory information
contained in the Service School AER be expunged from his record and that
and that he be given a diploma and credit for successful completion of the
AGOBC.

4.  The Board's previous recommendation that the derogatory information be
expunged from his Service School AER and that his records be placed before
Special Selection Boards using 1990 and 1991 criteria provided him with
additional opportunities to compete for promotion to the next higher grade
based



on the information contained in his service record.  He was not selected
for promotion before or after his records were corrected as directed by
this Board and the applicant has provided insufficient evidence to show the
actions taken by the Army in his case was incorrect or unjust.

5.  Consideration has also been given to the applicant's contention that he
should be promoted based on the fact that the recommendation made by the
board of officers "that he should be retained in active service" was never
acted upon.  However, that reason in itself is an insufficient
justification to warrant the relief request.  After this Board granted him
relief, and his records were corrected as requested, he continued to be
passed over for promotion.  He has failed to submit evidence to show that
the decisions made by the Special Selection Boards were incorrect.
Therefore, as a result of his continuous nonselection, he was properly not
promoted to the next higher grade, he was properly not returned to active
status, he is not entitled to back pay or lost income and he is not
entitled to retirement in the rank of captain.

6.  In order to justify correction of a military record the applicant must
show 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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 March 1999; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 28 February 2002.  The applicant 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

__kan___  __wdp___  __mjnt__  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 to amend the decision of
the ABCMR set forth in Docket Number AC97-05454, dated 18 June 1997.



                                        Kathleen A. Newman
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008985                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050823                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |131.0000/PROMOTION                      |
|2.  311                 |131.0100/SELECTION BOARDS               |
|3.  320                 |131.1000/FAILURE OF SELECTION           |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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