RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 May 2007
	DOCKET NUMBER:  AR20060012354 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Antonio Uribe

Member

Mr. Rodney E. Barber

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 that the effective date and date of rank (DOR) to captain be amended to 1 April 1992.

2.  The applicant states, in effect, that he should have been promoted to captain on 1 April 1992, the date that the Active Duty Promotion List was released.  The applicant continues by stating that had he been promoted, he would not have been involuntarily removed from active duty prior to the end of his initial obligated service requirement.

3.  The applicant contends that his educational status was incorrectly reflected in the records seen by the Fiscal Year 1992 Captain's Promotion Board and that although his Officer Record Brief (ORB) correctly reflected that he met the civilian education requirement for promotion to captain, his microfiche did not contain a college transcript showing that he met the education requirements for promotion to captain.

4.  The applicant provides a copy of a microfiche, dated 5 June 1991; an ORB, dated 29 May 1991; a college transcript; and a confirmation of a fax of his college transcript in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 July 1992, the date of his release from active duty .  The application submitted in this case is dated 16 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.  Records show the applicant was appointed as a Reserve commissioned officer on 9 May 1986 in the rank of second lieutenant.  On 10 January 1987, the applicant was appointed in the Texas Army National Guard and served until 23 November 1989.  On 24 November 1989, the applicant was ordered to active duty and served until he was honorably released from active duty on 31 July 1992 under the provisions of chapter 3 of Army Regulation 635-100 (Personnel Separation) based on Reduction in Authorized Strength. The applicant was transferred to the United States Army Reserve Control Group (Annual Training) upon his release from active duty.

4.  Records show that the applicant was not among those selected for promotion to the grade of captain by the 1992 United States Army Active Duty Promotion Board.  At the time of the applicant's nonselection for promotion to the grade of captain there were no civilian education requirements or prerequisites for promotion.  

5.  Records show the applicant was subsequently appointed as a first lieutenant in the Texas Army National Guard and selected for promotion to the grade of captain with a promotion eligibility date of 26 May 1993.

6.  Records show that the applicant declined promotion to captain for a period of two years and was subsequently promoted by the Texas Army National Guard on 17 October 1995.

7.  An advisory opinion was obtained from the US Human Resources Command which recommends denial of the applicant's request.  The Chief of the Promotions Branch of the US Human Resources Command opined that the applicant should not be granted reconsideration for promotion to captain in the United States Army because there was not at the time he was considered, a civilian education requirement for promotion to the grade of captain.

8.  The applicant responded to the Chief of the Promotions Branch of the US Human Resources Command advisory opinion in a two-page written statement.  The applicant argues that the FY 92 Captain's Promotion Board required possession of a baccalaureate degree for promotion to the grade of captain and retention on active duty.  The applicant further argues that if he had not possessed a baccalaureate degree at that time he would not have been qualified to appear before the Board.

9.  The applicant continues that while no post-graduate education requirement existed, the instructions to the FY 92 Captains Promotion Board directed the Board consider officers with special skill and training gained through Army directed educational programs such as the Academic Delay Program and that this education was shown by his masters of science in physics which was not reviewed by the Board.

10.  The applicant stated that he is an Experimental Physicist with a background in High Energy Experimental Physics Research and had experience working at the Collider Detector Facility at the Fermi National Accelerator Laboratory and the High Energy Physics Research Group at Texas A&M University before entering Active Federal Service in 1989.

11.  The applicant concludes that the evidence of a baccalaureate degree qualifying him to appear before the FY92 Captains Promotion Board was missing from his microfiche and that this material defect was compounded by the absence that he had the potential to be an Army Scientist which would have required that he be retained and promoted.

12.  Army Regulation 624-100 (Officer Promotions) prescribes the policies and procedures for promotion of officers on active duty.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error 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 nonselection 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 nonselection.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR to captain be amended to show 1 April 1992, the date the FY92 Active Duty Captains Promotion List was released, was carefully considered and determined to be without merit.

2.  The applicant was not disqualified for promotion based on failure to meet an education requirement.  In fact, the ORB, which is the source document for education level, reviewed by the promotion board in question clearly showed the applicant held a bachelor's degree at the time.  The absence of college transcripts is not material given the promotion board was aware of his civilian education level.  

3.  There is no evidence that the applicant's records reviewed by the FY92 Active Duty Captains Promotion List were incomplete.  Therefore, there is no basis to grant promotion reconsideration in this case.
4.  Based on the foregoing, there is no basis to grant the applicant's request to amend his DOR to 1 April 1992.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 July 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 July 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

_ENA____  __AU___  _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.




__Eric N. Andersen___
          CHAIRPERSON


INDEX

CASE ID
AR20060012354
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.