RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 May 2007
	DOCKET NUMBER:  AR20060011361 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry, Jr.

Chairperson

Mr. Thomas E. O'Shaughnessy, Jr.

Member

Mr. James R. Hastie 

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 reinstatement into the United States Army Reserve (USAR). 

2.  The applicant states, in effect, that he was never notified of his two non-selections for promotion to Chief Warrant Officer Four (CW4). 

3.  The applicant provides a copy of orders discharging him from the Ready Reserve, effective 9 October 1992. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 9 October 1992, the date of his discharge.  The application submitted in this case is dated 4 August 2006.

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.  On 27 August 1976, the applicant enlisted in the Regular Army for 3 years.  He opted for warrant officer flight training.  He completed basic combat training and warrant officer flight training.

4.  On 5 October 1977, the applicant was discharged for the purpose of accepting a warrant officer appointment.  He had completed 1 year, 1 month and 9 days of creditable active duty.

5.  On 6 October 1977, the applicant was appointed a warrant officer one in the USAR.  He was awarded military occupational specialty 100BO (Rotary Wing Pilot).  He was concurrently ordered to active duty and assigned for duty with the 18th Airborne Corps, Fort Bragg, North Carolina.




6.  On 6 October 1979, the applicant was promoted to chief warrant officer two.

7.  On 5 October 1980, the applicant was released from active duty and transferred to the USAR Control Group (Reinforcement).  He had completed 
3 years of active duty as a warrant officer.

8.  The applicant was promoted to chief warrant officer three (CW3) with a date of rank 6 October 1986.  This established his promotion eligibility date for CW4 as 6 October 1992. 

9.  Orders 84-4, First United States Army, Fort George G. Meade, dated 8 May 1987, reassigned the applicant, a CW3, from the 329th Engineer Group, Brockton, Massachusetts, to the USAR Control Group (Standby).  The orders further indicate that the applicant was a "Key employee."  The orders do not indicate that he was placed on the inactive list.

10.  On 22 April 1988, the applicant was assigned to Company B, 4th Battalion, 158th Aviation Regiment, for duty as a utility helicopter pilot.   

11.  On 8 July 1991, the United States Army Human Resources Command, 
1 Reserve Way, St. Louis, Missouri, notified the applicant that the Department of the Army Reserve Components Mandatory Selection Board convened on 7 May 1991 to consider officers of his grade for promotion.  The board examined the performance portion of the applicant's official military record.  He was not selected for promotion.  He was also informed that eligible officers should receive two opportunities for promotion and that his career manager might be able to assist him in improving his official file and to advise him regarding specific actions which would increase his potential for promotion.  This notification was sent to the applicant's address in Nashua, New Hampshire.

12.  On 22 June 1992, the United States Army Human Resources Command, 
1 Reserve Way, St. Louis, Missouri, notified the applicant that the Department of the Army Reserve Components Mandatory Selection Board convened on 5 May 1992 to consider officers of his grade for promotion.  The board examined the performance portion of the applicant's official military record.  He was not selected for promotion.  As a result of this second non-selection for promotion, he was informed that he must be discharged in accordance with title 10, United States Code, section 14513 or Army Regulation 140-10, not later than 
1 December 1992, unless he was eligible for and requested transfer to the Retired Reserve.  This notification was sent to the applicant's address in Nashua, New Hampshire.

13.  Letter Orders D-09-242373, United States Army Human Resources Command, 1 Reserve Way, St. Louis, Missouri, dated 5 September 1992, discharged the applicant from the USAR effective 9 October 1992.  These orders were addressed to the applicant's home in Nashua, New Hampshire.

14.  In the processing of this case, an advisory opinion was obtained from the Human Resource Specialist, Transition and Separations Branch, United States Army Human Resources Command, 1 Reserve Way, St. Louis, Missouri.  It opined that the applicant was discharged from an active status in accordance with the provisions of Army Regulation 135-175 per Letter Orders D-09-242373 dated 5 September 1992 effective 9 October 1992.  It further stated that he was discharged as a result of a second non-selection for promotion, and he was not eligible for transfer to the Retired Reserve.

15.  The applicant received a copy of this opinion and provided a four-page rebuttal statement with numerous enclosures.  The gist of his argument is that he was initially considered for promotion a year too early and that he did not receive the notifications of his non-selection.  He contends, in effect, that just because the notices are addressed to his home in Nashua, New Hampshire, this does not mean they were actually mailed to him.  

16.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) provides, in pertinent part, for a first time promotion consideration to CW4 after 6 years in grade as CW3, and if not selected, a second consideration one year later.  The mandatory promotion criteria was 6 months time-in-grade as a CW3.

17.  Army Regulation 140-10 (Assignments, Attachments, Transfers and Details) provides, in pertinent part, that Soldiers assigned to the Standby Reserve will be placed on either an Active or Inactive Status List.  Soldiers on the Active Status Standby List may participate in Reserve training activities at no expense to the government, earn retirement points, and be eligible for promotion.  This includes "Key Employees" who request assignment to the Active Status List or who have remaining statutory obligation.  Soldiers on the Inactive List may not train for pay or retirement points and are not eligible for promotion.  This includes "Key Employees" who do not request assignment to the Active Status List. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant was promoted to CW3 with a date of rank of 6 October 1986.   Therefore, he would have been considered in May 1991 for promotion to CW4 in 1992.
2.  There is no evidence showing that he was ever in an inactive status. 

3.  He was considered for promotion to CW4 by the 7 May 1991 board.  He was again considered by the 5 May 1992 board.  He was twice non-selected. He was discharged effective 9 October 1992.

4.  The applicant's contention that he was considered too early for promotion is not supported by the evidence.   His first consideration for promotion to CW4 was based on his 6 years time in grade as a CW3.  

5.  The notices of his non-selection were addressed to his home.  There is no evidence to substantiate that they were not sent to him, or that he did not receive them. 

6.  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 evidence that would satisfy the aforementioned requirement.

7.  In view of the above, the applicant's request should not be granted.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 October 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
8 October 1995.  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

___HOF _  __TEO__  ___JRH__  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.




___   Hubert O. Fry, Jr.___
          CHAIRPERSON




INDEX

CASE ID
AR20060011361
SUFFIX

RECON
 
DATE BOARDED
20070522 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0300.0000
2.

3.

4.

5.

6.