IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080008413 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of the Memorandum of Notification of Discharge from Active Duty, dated 3 September 2003, and the Acknowledgment of Mandatory Discharge from Active Duty from his Official Military Personnel File (OPMF).  

2.  The applicant states, in effect, that the (Memorandum Notification for Discharge) dated 3 September 2003 and the acknowledgement generated as a result of the FY03 Major, Army Competitive Category Selection Board be completely and permanently removed from his OPMF.  “Per Paragraph 10 of MIPER Message Number 03-076, TACP-MSP-O, FY03, Major, Army Competitive Category Promotion Board Zones of Consideration issued on 01/22/2003 -10.  Note that officers with an approved separation date within 90 days of the convene date of the board (i.e. separation dates thru 14 July 2003) are not eligible for consideration.”  He adds that he was discharged from active duty on 16 April 2003 making him ineligible for consideration by that board and therefore, ineligible for non-selection.  The letter for non-selection should not have been generated and should not be in his record.  The applicant finally states that he was unaware that this document was in his record until it was sent to him by the USAR appointments board (received on 19 May 2008) as a part of his request for reappointment to captain.  This document is a major obstacle and creates an erroneous status for his consideration for reappointment.  Regardless, this document is incorrect and should not be in his record.   

3.  The applicant provides a copy of the Memorandum of Notification of Discharge from Active Duty, dated 3 September 2003, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is serving as a sergeant in the Army National Guard in an active duty status.

3.  The applicant’s record shows he was appointed a second lieutenant in the USAR on 9 May 1992.  On 11 June 1992, he entered active duty in a commissioned officer status.  The applicant’s service was continuous, and on 
1 June 1996, the applicant was promoted to captain, pay grade O-3.   

4.  On 27 November 2002, the applicant received a Relief for Cause Officer Evaluation Report (OER) for the period of 29 June 2002 thru 27 September 2003.  The applicant was relieved of his principal duties as a Public Affairs Detachment Commander as per the recommendation of the Garrison Commander due to the applicant’s repeated failures of the Army Physical Fitness Test (APFT) standards.  He also was unable to demonstrate that he had passed an APFT despite his last OER stating that this was the case.  His inability to pass an APFT or demonstrate that he had passed an APFT within the last 6 months made the applicant a prime candidate for immediate separation.  The Rater and Senior Rater indicated the applicant as unsatisfactory performance and checked the do not promote block on his OER. 

5.  On an unknown date, the applicant resigned his commission and was separated on 16 April 2003.  The DD Form 214 he was issued confirms he was separated under the provisions of paragraph 4-24A (1), Army Regulation 
600-8-24, for unacceptable conduct with an honorable discharge.  He had completed 10 years, 10 months and 6 days of active honorable service. 

6.  In April 2003, the Department of the Army Competitive Category Selection Board convened to consider officers for promotion to the next higher grade.  The applicant was considered and non-selected by the board for promotion to major.

7.  A Memorandum of Notification of Discharge from Active Duty dated 
3 September 2003 was generated informing the applicant of his non selection to Major and acknowledgement of mandatory discharge from active duty.  This memorandum was placed in the applicant’s OPMF.   

8.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 

9.  Chapter 7 of the same regulation provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.  Paragraph 7-2 states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.   

10.  MILPER Message Number:  03-076 TACP-MSP- O FY03 Major, Army Competitive Category Promotion Board Zones of Consideration issued: [01/22/2003].  Item 10 of this message Note: That officers with an approved separation date within 90 days of the convene date of the board (i.e. separation dates thru 14 July 2003) are not eligible for consideration. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that the Notification of Discharge from Active Duty Memorandum and the Acknowledgment of Mandatory Discharge from Active Duty be removed from his OPMF was carefully considered and found to have merit.  

2.  The evidence of record clearly shows the Notification of Discharge from Active Duty Memorandum and the Acknowledgment of Mandatory Discharge from Active Duty acknowledgement receipt, dated 3 September 2003 was improperly generated and filed in the applicant OMPF.  The applicant’s record clearly shows that his separation date was within 90 days of the convene date of the promotion board to major.  The evidence of record also shows that the applicant was discharged after the promotion board convened.  Therefore, based on his separation date, the applicant was clearly not eligible for consideration and his record should not have been reviewed by the promotion board.

3.  Therefore, in the interest of equity and justice, the Board recommends removal of the Memorandum of Notification of Discharge from Active Duty and the Acknowledgment of Mandatory Discharge from Active Duty, dated 
3 September 2003, from the applicant’s OPMF.

BOARD VOTE:

____X____  ___X___  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing the Memorandum of Notification of Discharge from Active Duty, dated 3 September 2003; and 

	b.  removing Acknowledgment of Mandatory Discharge from Active Duty, and all related documents from his Official Military Personnel File.

      
      
      
      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008413



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ABCMR Record of Proceedings (cont)                                         AR20080008413



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