RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      20 October 2005
      DOCKET NUMBER:  AR20050005199


      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. John T. Meixell               |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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, promotion to captain.

2.  The applicant states that he was non-selected for promotion to captain
by the 1994 and 1995 promotion boards[sic].  He has the requirements to be
promoted to captain.

3.  The applicant provides copies of his Bachelor of Arts degree diploma,
his DA Form 1059 (Service School Academic Evaluation Report), his officer
evaluation report for the period 8 June 1991 through 12 February 1992, and
a memorandum of support from his former supervisor.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of his non-selections for
promotion to captain that occurred in 1992 and 1993.  The application
submitted in this case is dated 21 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 was appointed in the United
States Army Reserve, Infantry (IN) Branch, as a second lieutenant effective
12 May 1987.  He was appointed in the Texas Army National Guard (TXARNG)
effective 3 November 1987.  He was separated from the TXARNG effective 9
November 1989 and transferred to the USAR Control Group (Reinforcement).

4.  He entered on active duty in the Regular Army effective 12 November
1989.  He was promoted to first lieutenant effective 14 May 1990.  He was
released from active duty effective 14 February 1992 and transferred to the
USAR Control Group (Reinforcement).

5.  He was considered and not selected for promotion to captain by the 1992
and 1993 Reserve Components Selection Boards (RCSB) that convened on
23 November 1992 and 16 November 1993.  The boards did not divulge the
reason(s) for his non-selection except that it was not for lack of civilian
or military education.
6.  He was notified of his non-selection by the 1992 RCSB by memorandum
dated 29 January 1993 and notified of his non-selection by the 1993 RCSB by
memorandum dated 1 March 1994.

7.  He was separated from the USAR effective 15 May 1995, under the
provisions of Army Regulation 135-175, based on his two non-selections.

8.  He enlisted in the TXARNG as a sergeant, pay grade E-5, effective 1 May
2003.  He is currently serving on active duty as a member of the ARNG.

9.  Documentation submitted by the applicant show he was awarded a Bachelor
of Arts degree from The University of Texas at San Antonio on 11 August
1989.   He also submits copies of his DA Form 1059 that shows he completed
the IN Officer Basic Course (OBC) on 16 March 1990, was rated, "promote
with contemporaries" in the officer evaluation report for the period ending
12 February 1992, and a memorandum in which his former supervisor stated he
considered the applicant an outstanding staff officer.

10.  In an advisory opinion, dated 1 July 2005, the Chief, Personnel
Division, Departments of the Army and the Air Force, National Guard Bureau
(NGB), Arlington, Virginia, stated that the applicant was commissioned in
the TXARNG as a second lieutenant on 3 November 1987, completed his
bachelor's degree on 11 August 1989, and was separated from the ARNG and
transferred to the USAR on 9 November 1989.  While assigned to the USAR, he
completed the INOBC on 16 March 1990 and was promoted to first lieutenant
on 8 May 1990.  He was separated from the USAR[sic] and transferred to the
USAR Control Group (Reinforcement) on 14 February 1992.  He enlisted in the
TXARNG as a sergeant, pay grade E-5, on 1 May 2003.

11.  The opinion also stated that in accordance with Army Regulation 135-
175, chapter 4, paragraph 4-4(5), that states officers in the grade of
first lieutenant, captain, or major who do not complete the statutory
military obligation will be discharged for failure to be selected for
promotion after the second time consideration by a RCSB.  Also, National
Guard Regulation 600-100 (1994), chapter 8, paragraph 8-8, states that the
minimum time in grade for captain was 2 years.  Per the Reserve Officer
Personnel Management Act (ROPMA), dated 1 October 1996, the Table in
paragraph 5-2 reflects the minimum time in grade for captain as 2 years,
and paragraph 5-3 reflects that mandatory promotion to captain is 5 years
time in grade.  The applicant did not include copies of his non-selection
memorandums with his request.  A search of his Personnel Electronic Records
Management System did not turn up these documents either.  The NGB,
Personnel Division, does not know the reason(s) for his two non-selections
for promotion to captain.  For this reason, the NGB, Personnel Division,
and the Personnel Policy and Readiness Division non-concurred and
recommended denial of the applicant's request for recommissioning as a
captain.  The NGB, Personnel Division, and the Personnel Policy and
Readiness Division also recommended that if the TXARNG, Adjutant General
approves for the applicant to be reappointed as a first lieutenant, the
applicant must submit a request as an exception to policy of a former
officer and send it to the NGB, Personnel Policy and Readiness Division
(NGB-ARH) in order to be considered by the Army G1.  The advisory opinion
was coordinated with NGB-ARH; they concurred.

12.  The advisory opinion was forwarded to the applicant for
acknowledgement and possible rebuttal on 27 July 2005.  He did not respond.

13.  Army Regulation 135-175, prescribes the policies and procedures for
the separation of Reserve Components Officers.  Chapter 4, paragraph 4-
4a(5), of this regulation specifies that an officer in the grade of first
lieutenant, captain, or major, who has completed their statutory military
service obligation, will be discharged for failure to be selected for
promotion after the second consideration by a RCSB.

14.  Army Regulation 135-155, prescribed the policies and procedures for
the promotion of Reserve and ARNG officers.  This regulation, in effect at
the time, specified that the service requirement for promotion to captain
for officers appointed prior to 1 October 1996 required a minimum combined
number of years of promotion and commissioned service.  Officers will be
promoted on the latter of the two dates.  Promotion to captain required
completion of 2 years time in grade for promotion selection by a Unit
Vacancy Board, or completion of 4 years time in grade and 6 years time in
service for promotion selection by a mandatory RCSB.  An officer who twice
fails to be selected for promotion to the grade of captain will not again
be considered for promotion and will be removed from active status or
retained in the active Ready Reserve if not qualified for retention.

15.  Army Regulation 135-155, in effect at the time, also specified that
promotion boards were not required to divulge the proceedings or the
reason(s) for non-selection, except where an individual was not qualified
due to non-completion of required military schooling.  Selection boards
based their recommendations for promotion using the fully-qualified method.
 Promotion was not automatic and based on qualifications alone, but
included a competitive process of a RCSB determining an individual's
potential and ability to perform at the higher grade.

16.  Army Regulation 135-155, in effect at the time, and the current
version, further specifies that promotion reconsideration by a special
selection board for possible promotion to the next higher grade 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.

17.  The ROPMA, a public law enacted by Congress on 5 October 1994,
prescribes the policies and procedures to consolidate and modernize the
laws that govern Reserve component officers.  The law was implemented on
1 October 1996.  ROPMA provides that promotion to captain requires
completion of 2 years time in grade for promotion by a Position Vacancy
Board, or completion of 5 years time in grade for promotion by a mandatory
RCSB.  The requirement for meeting time in grade and years of commissioned
service for promotion is no longer applicable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to promotion to captain.  He has not
shown error, injustice, or inequity for the relief he now requests.

2.  The applicant’s contention that he has the requirements to be promoted
to captain has been noted.  However, the applicant was fairly considered
for promotion to captain by the 1992 and 1993 RCSB's and not selected.  He
has not satisfactorily shown that his records were not complete and
contained material error when reviewed by the RCSB's, which mandates
promotion reconsideration.  Based on his two non-selections for promotion
to captain, he was discharged from the Reserve.

3.  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.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 March 1994, the date of his second
non-selection memorandum; therefore, the time for the applicant to file a
request for correction of any error or injustice expired on 28 February
1997.  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 file
in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JTM___  _JBG____  _JRM____  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.




                                  _       John T. Meixell            _
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005199                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/20                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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