RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 December 2005
      DOCKET NUMBER:  AR20050008445


      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. John T. Meixell               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Richard G. Sayre              |     |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 application
requesting removal of a second non-selection for promotion from his record
and reconsideration for promotion to captain (CPT) by a special selection
board (SSB).

2.  The applicant states, in effect, that he has issues regarding the use
of the statute of limitations in his case; however, his argument for
reconsideration will be made based on equity considerations.  He states
that United States Army Reserve (USAR) and Army National Guard (ARNG)
Soldiers live in a different world than Regular Army Soldiers.  He claims
that the contention that an officer is in control of his career is correct;
however, a Reserve officer who was not attached to a unit might have been
at a disadvantage in realizing the options available to him.  He claims he
took it upon himself to try and transfer from the Inactive Ready Reserve to
the regular ARNG twice.  He also claims that during this period, while he
waited for a response from the CPT promotion board, he requested and
completed the correspondence portion of the Field Artillery Officer Advance
Course (OAC).  He claims this effort showed his willingness to serve.  He
states that he believes a person can function quite well and effectively as
a citizen Soldier.

3.  The applicant further states that he has always been a proactive
individual and feels an injustice has been served on him and that the grand
scope of life can accommodate his request without much difficulty.  He
claims there is nothing “antithetical about my life, past or lifestyle
precluding me based on Army Values.”
He states that people should be allowed to serve if they so chose.  He
states that with his previous experience and willingness to serve, he feels
an exception should be made to allow him to continue with his ARNG service.


4.  The applicant provides the following documents in support of his
application:  Self-Authored Letter, dated 24 May 2005; Unsigned Third-Party
Letter of Recommendation, dated 18 January 2005; Applicant’s Inspector
General (IG) Assistance Request, dated 20 November 2004; and Applicant’s
Letter Requesting Judge Advocate General (JAG) Support for his Application,
dated
21 October 2004.






CONSIDERATION OF EVIDENCE:

1.  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
AR2003098137, on 24 June 2004.

2.  During its original review of the applicant’s case, the Board concluded
that based on the length of time the applicant served as a first lieutenant
and given the wide dissemination of information regarding Reserve Component
Selection Board (RCSB) dates and promotion zones, he was, or should have
been aware of the fact he was going to be considered for promotion to CPT
by a RCSB as early as 1995, and that it was his responsibility to ensure
his record would present his career and qualifications to the RCSB in the
best possible light.

3.  The Board also determined that implicit in the Army’s promotion system
was the universally accepted principle that officers have a responsibility
for their own careers.  The Board also concluded that the promotion files
for the 1996 and 1997 RCSB were no longer available for comparison with the
applicant’s file for promotion reconsideration.  As a result, the
applicant’s failure to address the issue in a timely manner disadvantaged
the Army in its ability to make a fair determination in his case.

4.  The applicant provides an unsigned third-party memorandum of support
from a CPT who worked with the applicant on two separate occasions while
they were members of the Ohio ARNG.  This individual states that he
believes if the applicant is placed in the proper environment, he can be an
asset to an organization.

5.  The applicant also provides self-authored letters requesting IG and JAG
support of his application to the Board.  In these letters, he outlines why
he disagrees with the original findings and conclusions of the Board, and
requests support for his reconsideration request.  However, he fails to
provide any responses from these officials.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s reconsideration request for removal of a second non-
selection for promotion from his record and reconsideration for promotion
to CPT by a SSB and the supporting documents he submitted were carefully
considered.  However, the evidence of record confirms the applicant’s
separation processing based on his second non-selection for promotion was
accomplished in accordance with the governing law and regulation.  The fact
that he has later decided he would again like to serve is not a
sufficiently mitigating factor to support his promotion reconsideration at
this late date.

2.  The applicant is advised that the Board decision to not waive the
statute of limitations in his case was only made after the case was fully
considered on the merits.  Had the Board found sufficient merit in his
request, the statute of limitations would have been waived.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit any new evidence or argument that would satisfy this requirement.
As a result, there is an insufficient evidentiary basis to support amending
the original Board decision.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JTM _  __ML ___  ___RGS _  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 AR2003098137, on 24 June 2004.




            ____John T. Meixell     ___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050008445                           |
|SUFFIX                  |                                        |
|RECON                   |AR2003098137 / 2004/06/24               |
|DATE BOARDED            |2005/12/01                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131-1000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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