RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      5 January 2006
      DOCKET NUMBER:  AR20050004168


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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, removal of his first and second non-
selections for promotion to captain from his record and promotion
consideration to captain by a special selection board (SSB).

2.  The applicant states, in effect, that his lack of consideration for
promotion to captain in the Army Reserve was unjust as he was on active
duty as an enlisted member of the US Army when the promotion board
convened.  While on active duty and just prior to enlisting in the Active
Army, he was placed within the Dual Component Program.  He was not given
any counseling or guidance as to what his responsibilities were pertaining
to consideration for officer promotions within the inactive Ready Reserve.
Soldier members should be given the opportunity for consideration for
promotion as it would benefit the members, the US Army, and the
Pennsylvania Army National Guard (PAANRG) due to mission critical military
occupational specialties.

3.  He also states, in effect, that Army Regulation 600-39, Paragraph 21
(Promotions) states that he would be made aware of promotion requirements.
He was never advised, notified, or briefed on any requirements for
promotions.  The regulation also states that he would be encouraged to
enroll in courses of instruction and complete academic studies.  He was
never notified or contacted about these opportunities.  He was never
notified that he was to submit photographs for Reserve officer promotion
consideration.

4.  The applicant provides copies of Army Regulation 600-39, Paragraph 21;
his Notification of Promotion Status Memorandum; his 1997 and 2003 DD
Form's 214 (Certificate of Release or Discharge from Active Duty); and his
Army Training Transcript.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on 1 March 1996, the date of his second non-selection
notification.  The application submitted in this case is dated 15 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 limitation 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 enlisted in the Regular Army
effective 15 January 1992, with prior Army Reserve enlisted service.  He
was promoted to the rank of sergeant, pay grade E-5, effective 1 June 1994.

4.  He was subsequently appointed in the United States Army Reserve, as a
second lieutenant and was promoted to first lieutenant in the inactive
Ready Reserve effective 23 May 1992.

5.  Based on the required 4 years maximum time in grade, his promotion
eligibility date for captain, in the inactive Ready Reserve, was 22 May
1996.

6.  He was considered and not selected for promotion to captain by the 1995
Reserve Components Selection Board (RCSB) that convened on 14 November
1995.  The board did not divulge the reason(s) for his non-selection,
except that it was not for education.

7.  He was issued a Notification of Promotion Status memorandum, dated
1 March 1995, at his home of record at the time, advising him that he had
been considered and was not among those selected for promotion by the 1995
RCSB. The memorandum also advised that this was his first passover for
promotion.  He would be considered by a second board providing he was in a
promotable status. The memorandum further advised that selection boards are
not permitted to divulge the reasons for their selection or non-selection.

8.  He was considered and not selected for promotion to captain by the 1996
RCSB that convened on 12 November 1996.  The board did not divulge the
reason(s) for his non-selection, except that it was not for military
education.

9.  He was considered and not selected for promotion to captain by the 1997
RCSB that convened on 12 November 1997.  He was not qualified for promotion
based on the lack of the required education.

10.  On 25 February 1997, he was punished under Article 15, Uniform Code of
Military Justice for dereliction of duty.  His punishment included
reduction to pay grade E-4, forfeiture of pay for 2 months which was
suspended, and 30 days extra duty and restriction.

11.  He was honorably discharged from the Regular Army, in pay grade E-4,
effective 12 May 1997, under the provisions of Army Regulation 635-200,
Chapter 14 for misconduct.

12.  The Army Training Transcripts, dated 9 March 2002, shows the applicant
completed the Airborne Course, the Military Police Officer Basic, the Basic
Military Police Course, the Apprentice Criminal Investigation Division
Special Agent Course, the Military Police Basic Non-Commissioned Officer
Course, the Combat Lifesaver Course, and the Evasive Driving for General
Officer Drivers.

13.  In an advisory opinion, dated 2 June 2005, the Chief, Promotions
Branch, Office of Promotions, Reserve Components, Human Resources Command –
St. Louis, Missouri, stated that the applicant was a dual component officer
serving on active duty as an enlisted Soldier and assigned to a Control
Group as an officer when he was considered and not selected for promotion
to captain by the RCSB's that convened on 14 November 1995, 12 November
1996, and 12 November 1997.  Dual component officers are considered for
promotion in accordance with Army Regulation 600-39, Section IV.  The
regulation states dual components officers who are in the zone of
consideration will be considered by a promotion board.  The applicant met
the 4 years time in grade requirements; therefore, he was considered by the
boards.  The reason for the applicant's non-selection by the 1997 RCSB was
based on the fact he was not educationally qualified.  Board deliberations
are not a matter of record; therefore, the reasons for his non-selection by
the 1995 and 1996 RCSB's are unknown.

14.  The advisory opinion also stated that it could not be verified if the
applicant was counseled and given guidance concerning his responsibilities
and promotion requirements while serving in a dual status.  It was the
service member's responsibility as well as his career manager's
responsibility to ensure he was aware of the promotion requirements and the
opportunities to seek and develop his career.  A photograph is not a
pertinent document to warrant promotion consideration by a SSB.  The basis
for special board consideration is officer evaluation reports, highest
civilian and military education, and the Silver Star award or higher that
was received prior to the convening date of the selection boards.  The
applicant did not submit any of the listed documents; therefore, he does
not have a basis for special board consideration.  In view of the facts, it
was recommended the applicant's request be disapproved.

15.  The opinion was forwarded to the applicant for
acknowledgement/rebuttal on 30 June 2005.  In his rebuttal, dated 20 July
2005, the applicant stated that a review of the facts will show he was on
active duty as an enlisted Soldier and

was not given the due nor proper guidance for continuing his advancement
within the officer ranks.  The opinion stated that "board deliberations are
not a matter of record" after stating his non-selection in 1997 was "based
on the fact he was not educationally qualified."  This board decision was
apparently a matter of record.

16.  The rebuttal also stated that he was never informed or provided
documents as to who his career manager was.  He does not believe the
military would have allowed him leave to pursue the officer advanced course
while serving simultaneously as an enlisted Soldier.  He seeks resolution
to this matter by allowing him to receive his promotion to captain, as the
officer advanced course (OAC) is no longer required to obtain the rank.  He
would immediately enroll in the OAC to accelerate his promotion window and
catch up with his peer group.

17.  Army Regulation 600-39 prescribes the policies for enlisted personnel
holding dual status in both the Active Army and the Army Reserve.  This
regulation specifies that commissioned officers assigned to the USAR
Control Group (Dual Component) are non-unit officers whose promotion in the
USAR is governed by Army Regulation 135-155.  Members normally are
considered for promotion in the calendar year before the calendar year in
which they are eligible.  Commanders and military personnel records
custodians will ensure that these members are aware, that for promotion in
the USAR, they must meet eligibility requirements in accordance with Army
Regulation 135-155 and encourage enrollment of USAR lieutenants in resident
officer basic courses of instruction and completion of academic studies.
This will allow members to be competitive with their USAR peers.

18.  Army Regulation 600-39, Section V, paragraph 33, specifies that the
member is responsible for seeking opportunities to develop his or her own
specialty-related talents and skills.  The member should seek guidance from
other designated managers, when necessary, to enhance his or her career.

19.  Army Regulation 600-39 also specifies that action will be taken to
remove dual component members from their active/inactive Ready Reserve
status for twice non-selected for Reserve promotion to captain.

20.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve officers.  This regulation specifies that promotion
consideration/reconsideration by an 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 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.

21.  Army Regulation 135-155 also specifies that officers who discover that
material error existed in their file at the time they were non-selected for
promotion may request reconsideration through the Office of Promotions,
Reserve Components.  Reconsideration will normally not be granted when an
officer could have taken timely corrective action such as notifying the
Office of Promotions of the error and providing any relevant documentation
that he or she had.  To determine if there is an error in the promotion
file, the officer may request, within 2 years of the board recess date, a
copy of his or her file, as considered by the mandatory RCSB through the
Office of Promotions, Reserve Components.

22.  The regulation further states that those officers non-selected will be
sent notification.  The original copy of the memorandum will be sent to an
officer through command channels or directly to the officer if he/she is in
a non-unit status, one copy will be filed in the officer's official
military personnel records and one copy will be filed in the officer's
military personnel file.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to removal of his non-selections for promotion to captain and
promotion consideration to captain by an SSB.  He has not shown error,
injustice, or inequity for the relief he now requests.

2.  The applicant's contention that he was not given any counseling or
guidance as to what his responsibilities were pertaining to promotion
consideration while in the Reserve has been noted.  The applicant was a
dual component officer serving on active duty as an enlisted Soldier and
assigned to a Control Group when he was considered and not selected for
promotion to captain by the 1995, 1996, and 1997 RCSB's.  Dual component
officer promotions in the USAR are governed by Army Regulation 135-155 and
they must meet eligibility requirements in accordance with that regulation.
 Based on his non-selections, regulatory guidance required his removal as a
dual component member from the inactive Ready Reserve.



3.  The general requirements and workings of the Reserve promotion system
are widely known and specific details such as RCSB dates and promotion
zones are widely published in official, quasi-official and unofficial
publications, and in official communications.  The applicant knew, or
should have known, that he would be considered for promotion and that he
needed to insure, well in advance, that his record would present his career
and qualifications to promotion boards in the best possible light.
Implicit in the Army's promotion system is the universally accepted and
frequently discussed principle that it is the service member's
responsibility as well as his career manager's responsibility to ensure he
was aware of the promotion requirements and the opportunities to seek and
develop his career.

4.  There are no available promotion files for the 1995, 1996, and 1997
RCSB's for comparison with the applicant's file for promotion
reconsideration.  Without this evidence the applicant has disadvantaged the
Army in its ability to make a fair determination of his promotion potential
by his failure to timely file his request.  It is concluded that the
applicant is not entitled to promotion consideration to captain by a SSB.

5.  Promotion board policy does not permit the disclosure of reasons for
non-selection for promotion.  In this regard, it must be noted that the
selection boards that considered the applicant for promotion were
instructed to select only those who were considered fully-qualified for
promotion to the next higher grade in the Reserve.  Accordingly, it must be
presumed that, when reviewed by the promotion boards, the applicant's
overall records failed to meet the standards established for selection on a
fully-qualified basis.

6.  It is also noted that the education requirements pertain to all
officers and all officers are considered for promotion to captain under
equal standards.  Pertinent regulations specify that an officer must meet
the military education requirement prior to the convening date of the
board.  Completion of an officer basic course has been a long-standing
regulatory requirement for promotion to captain in the Reserve.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 March 1996, the date of his second
non-selection notification; therefore, the time for the applicant to file a
request for correction of any error or injustice expired on 28 February
1999.  However, 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

__RJF__   _WDP___  _TMR___  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.




                                  _____William D. Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004168                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.10                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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