RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 May 2007
      DOCKET NUMBER:  AR20060013327


      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      |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. LaVerne Douglas               |     |Member               |
|     |Mr. Gerald Purcell                |     |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, that he be reinstated in the United
States Army Reserve (USAR) so that he can obtain 20 years of qualifying
service for retirement purposes.  He also requests that he be promoted to
the rank of captain.

2.  The applicant states that while he was in an active Reserve status, he
was passed over for promotion three times.  He states that he was never
afforded an opportunity to show just cause to be retained.  He also states
that he was offered an opportunity to complete 20 years of qualifying
service and that he completed the forms and submitted them; however, he was
discharged upon his release from active duty status during Operation Desert
Storm.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 July 1996.  The application submitted in this case is
dated 19 September 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.  After completing 5 years and 14 days of total service (active and
inactive) in the United States Navy, the applicant enlisted in the Unites
States Army Reserve (USAR) on 19 May 1981, for 1 year, in the pay grade of
E-3.  He reenlisted in the USAR for an additional 3 years on 7 March 1982.






4.  The available records show that on 29 September 1986, the applicant was
notified that he had been selected for promotion to the rank of first
lieutenant (O2) with an effective date of on 31 July 1986.

5.  The applicant was attending the Chemical Officer Advanced Course at
Fort McClellan, Alabama, on 17 June 1987, when notified that he was
receiving a referred Academic Evaluation Report as a result of a confirmed
positive urinalysis for illegal drug use.

6.  On 31 January 1990, the applicant was notified by the United States
Total Army Personnel Command, St. Louis, Missouri, that he had been
considered for promotion to the next higher grade by a Reserve Component
Selection Board (RCSB) and that the board did not recommend that he be
promoted, which constituted his first pass over for promotion.  In the
notification, the applicant was informed that selection boards are not
permitted to divulge the reasons for their selection or non-selection; and
that his non-selection need not cause his military status to come to an
end.  He was informed that the law required that he be considered by a
second board, providing he was in a promotable status, and that the new
board would again evaluate his official Department of the Army file, to
include any additions since his last consideration.  The applicant was
informed that the board would judge his military record as compared with
the records of the officer in the new zone of consideration; and that if he
was not selected by the next board, he would be subject to removal from an
active status in accordance with regulations.

7.  In a memorandum dated 1 February 1991, the applicant was informed by
the United States Total Army Personnel Command, that a Department of the
Army RCSB convened to consider officers of his grade for promotion; and
that the board examined the record of each eligible officer in accordance
with the Letter of Instruction provided by the Department of the Army,
Deputy Chief of Staff for Personnel.  The applicant was told that he had
been considered but, unfortunately, not among those selected for promotion
by the board and, as a result of his second non-selection, he must be
separated.  He was told that he would be advised by his commander of
separation procedures and any options available to him by separate
correspondence.

8.  The available information indicates that the applicant was discharged
on 15 July 1996, based on his non-selections for promotion.




9.  During the processing of this case, an Advisory Opinion was obtained
from the Chief, Special Actions Branch, Office of Promotions, Reserve
Components, who, provided documentation currently maintained in the
applicant's official files. Although not indicated in the Advisory Opinion,
the Chief, Special Actions Branch, Office of Promotions, Reserve Components
recommends denial of the applicant's requests.

10.  A copy of the Advisory Opinion was forwarded to the applicant on
1 March 2007 for review and/or possible rebuttal.  To date, there has been
no response from the applicant regarding the Advisory Opinion.

11.  Army Regulation 135-155, is the authority for the promotion of Army
National Guard and USAR commissioned officers and warrant officers other
than general officers.  This regulation prescribes policy and procedures
used for selecting and promoting commissioned officers.  It provides, in
pertinent part, that all communications, other than those solely
administrative in nature, will be in writing, furnished to all board
members, and made a part of the board's record.  An audio or video
recording is an acceptable means of communication with the board so long as
a written transcript is included in the board record.  No one, other than
the Secretary of the Army, will appear in person to address a promotion
selection board on any matter; this authority may not be delegated.  If the
Secretary of the Army appears in person to address a promotion selection
board, a verbatim written transcript of his or her remarks will be provided
to every board member and included in the board record.  This does not
restrict the Secretariat for Department of the Army Selection Boards
(Reserve Component) from furnishing administrative information to the
board.  Oral communication of routine administrative information among
board members, recorders, and support personnel is authorized to the extent
necessary to facilitate the work of the board. No one may appear in person
before a selection board or the Secretary of the Army on their own behalf
or in the interest of anyone being considered.  An officer who twice fails
to be selected for promotion to the grade of CPT, MAJ, or LTC will be
removed from active status unless subsequently placed on a promotion list,
selected for continuation, or retained under any other provision of law.
Non-selection by a promotion board is administratively final.  If law
requires removal from active status, the officer must be removed within the
prescribed time limits.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence indicates that the applicant was separated from
the USAR in accordance with the applicable regulation.

2.  The applicant's contentions have been noted.  However, the records
indicate that he was passed over twice for promotion to captain and that he
was informed each time of his non-selections.  At the time of his initial
non-selection, he was told that the selections boards are not permitted to
divulge the reasons for their selection or non-selection; however his
official file would again be considered, which included any additions since
his last consideration.  At the time of his second non-selection, he was
reminded of what he was told at the time of his initial non-selection and
he was informed that he must be separated.

3.  The applicant has submitted no evidence that indicates that his non-
selections for promotion were in error or unjust.  The evidence of record
indicates that he was considered for promotion in accordance with the
applicable regulation and the fact that he was not allowed to show just
cause for retention in the Army is an insufficient justification to warrant
the relief request.

4.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 July 1996; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 14 July 1999.  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

__YM ___  ___LD __  __GP ___  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.




                                  ____Yolanda Maldonado______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013327                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070515                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  14   |102.0000/OFFICER APPOINTMENTS           |
|2.  1044                |102.0900/REINSTATEMENT                  |
|3.  310                 |131.0000/PROMOTION                      |
|3.  320                 |131.1000/PASSOVER                       |
|5.                      |                                        |
|6.                      |                                        |


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