RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 January 2006
      DOCKET NUMBER:  AR20050004052


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 he be reconsidered for
promotion to Army Reserve (USAR) major.

2.  The applicant states, in effect, that his record was incomplete when he
was considered for promotion by the 1988 Reserve Components Selection Board
(RCSB).  He had personally provided the course completion certificate for
the Officer Advanced Course (OAC), but it was not provided to the selection
board.  He was discharged from the USAR because he was twice nonselected.
He did not apply to this Board because he was finalizing a difficult
divorce.  Later, his records were stolen.  He thought that would preclude
any chance of a favorable resolution.  He only recently learned that all
pertinent documents are now in his official file.  "There may be 2
different Advanced Course certificates.  The earlier one was the correct
document."

3.  The applicant provides no additional documentation with his application
except a brief letter in lieu of the on-line signature page.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 July 1989, the date of his transfer to the Retired
Reserve.  The application submitted in this case is dated 7 March 2005.

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 military records show he was appointed a USAR second
lieutenant on 28 July 1975.  He entered active duty on 5 January 1976 and
was released from active duty and transferred to the USAR Control Group
(Reinforcement) on 15 December 1978.  He served in various RC capacities
and was promoted to captain with a date of rank of 4 January 1982.

4.  He entered active duty on 10 February 1986 in the Active Guard/Reserve
(AGR) program.  An Academic Evaluation Report (AER), dated 19 June 1987
reported the completion of the, "Signal Basic Officer Advanced [emphasis
added] Course-Phase IV."

5.  The applicant was considered but not selected by the 1988 RCSB which
convened on 11 April 1988.  The 27 June 1988 letter of notification cited
non-completion of the military education requirement as one of the possible
reasons for his nonselection.

6.  A 28 April 1988 memorandum notified the Commander, Army Reserve
Personnel Center that the applicant had completed Phases 1 and 3 of the,
"Signal Reserve Officer Advanced Course" on 28 April 1988.  It stated, "An
official notice of phase completion will be issued on the date the records
are processed through the computer."

7.  The applicant was again nonselected by the RCSB which convened on
28 February 1989.  The letter of notification did not cite failure to meet
the military education prerequisite as one of the reasons for nonselection.
 The applicant was notified of his available options as a two time
nonselectee.  In accordance with his request, he was transferred to the
Retired Reserve on 23 July 1989.

8.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve officers.  This regulation specifies that promotion
reconsideration by a special selection board (SSB) may only be based on
erroneous non-consideration or material error, which existed in the records
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 also provides
that boards are not required to divulge the proceedings or the reason(s)
for non-selection, except where an individual is not qualified due to non-
completion of required military schooling.

9.  This regulation also specifies that a copy of the officer’s records are
dispatched 30 days before the convening date of the board and officers are
directed to review the records and submit copies of missing documents and
other
corrections.  Lack of notification does not provide an independent basis to
be reconsidered by an SSB.  An administrative error was immaterial if the
officer, in exercising reasonable diligence, could have discovered the
error or omission and taken timely corrective action notifying
Headquarters, Department of the Army with supporting documentation.

10.  During the processing of this case an advisory opinion was provided by
the Chief, Promotions Branch, Office of Reserve Promotions, Human Resources
Command (HRC), St. Louis, Missouri.  The Chief noted that the RCSB convened
on 12 April 1988, but that the applicant did not complete the OAC until 28
April 1988.  Therefore, there is no basis to reconsider him under the 1988
criteria.  The Chief also noted that the applicant could be considered
under the 1989 criteria; however he recommended against doing so because he
would have to be immediately considered for promotion to lieutenant colonel
(LTC) and he could not possibly be selected because he lacks the military
educational prerequisite.

11.  The advisory opinion was provided to the applicant as a favorable
recommendation for possible comment.  The applicant stated, "I agree with
the essential facts."  However, he interprets the advisory opinion as being
totally unfavorable.  He contends, in effect, that "conjecture" that he
might be non-selected for promotion to LTC is not relevant to the
fundamental question at issue.

DISCUSSION AND CONCLUSIONS:

1.  Exactly what military education requirement is referenced in the 19
June 1987 AER is unclear.  It certainly was not total completion of the
OAC, because some phases of the OAC were subsequently completed on 28 April
1988.  Thus, the applicant's assertion that the earlier certification is
the correct one is not informative.

2.  The facts of the case, the regulatory guidance, the advisory opinion,
and the applicant's rebuttal have all been carefully considered.  He is not
eligible for reconsideration by the 1988 RCSB criteria and he currently
agrees with that assessment.  He continues to assert that he should be
reconsidered by the 1989 criteria.  However, if he were considered and
selected for promotion to major, his immediate nonselection for LTC is not
conjecture.  It is a certainty, because he has not met the military
education requirement for LTC.

3.  The date, 28 April 1988, of the course completion memorandum strongly
suggests that it was available for the second RCSB which convened on
28 February 1989.  Furthermore, it is noted that the letter of notification
of the applicant's second nonselection did not cite failure to meet the
military education prerequisite as the reason for nonselection.

4.  Additionally, the governing regulation provides that an administrative
error is immaterial if the officer, in exercising reasonable diligence,
could have discovered the error or omission and taken timely corrective
action.

5.  Notwithstanding the advisory opinion and the applicant's contentions,
the evidence of the applicant's completion of the OAC was apparently
available for the second RCSB.  Furthermore, at this late date the alleged
error is immaterial, because reasonable diligence would have long since
brought about reconciliation of any possible mistake.  None of the
requested relief is appropriate.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 July 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 22 July 1992.  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

__LDS__  __RMN___  __REB__  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.




                                  _      Linda D. Simmons______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004052                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060112                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |. . . . .                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |142.00                                  |
|2.                      |13                                      |
|                        |131.01                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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