IN THE CASE OF:	

		BOARD DATE:	 9 December 2008 

		DOCKET NUMBER:  AR20080016374 


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 that he be given promotion reconsideration to chief warrant officer three (CW3) and, if selected, that he be given an effective date of promotion and date of rank retroactive to the date he would have been given if he had been selected for promotion in 1996.

2.  The applicant states that he was not notified that he was going to be considered for promotion and, therefore, never given the opportunity to ensure that his military records were correct and updated.  

3.  The applicant details his many and varied accomplishments.  He then states that there is no derogatory information in his records and that when he reviewed his military records, he found they were missing multiple awards, an academic evaluation report, his 1994 photograph, and transcripts for his bachelor of science and master in business administration degrees.

4.  The applicant adds that from May 1995 through February 2001, he was traveling extensively for business and spending protracted periods outside of the country.  He believes that his travel may have made it hard for St. Louis to notify him that he was going to be considered for promotion.

5.  The applicant provides documents which he groups into seven categories which he lists in his 17 October 2008 letter to the Board.



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's military records show that he entered active duty as a warrant officer candidate on 7 October 1987 and was appointed as a warrant officer one on 14 March 1989.

3.  He served as an AH-1 pilot and was promoted to chief warrant officer two (CW2) on 14 February 1991.

4.  The applicant was honorably released from active duty on 30 June 1994 with special separation benefits and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

5.  On 15 September 1997, the applicant was notified that he had been considered but not selected for promotion to CW3 and, since it was his second consideration, he was required to be discharged.

6.  The orders discharging the applicant due to his second failure to be selected for promotion are not contained in the available records.

7.  On 3 March 2008, the applicant enlisted in the Army National Guard in pay grade E-6.

8.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation:

   a.  provides in Table 2–3, Warrant officer time in grade and military education requirements, that a CW2 is considered by a mandatory promotion board to CW3 when the officer has 6 years time in grade.

   b.  specifies that promotion reconsideration by a special selection board (SSB) 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.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required education.

   c.  states that reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.  To determine if there is an error in the promotion file, the officer may request, within 2 years of the board recess date, a copy of his or her file, as considered by the mandatory Reserve of the Army selection board.

DISCUSSION AND CONCLUSIONS:

1.  Since the reason for the applicant's failure to be selected for promotion was not a failure to meet educational requirements, there would be no record of why he was not selected for promotion in accordance with Army Regulation 135-155.

2.  While the applicant states that there were many important documents missing from his records, he has not submitted any evidence to support that contention.

3.  However, even if the applicant could show that his records were missing documents which may have resulted in his selection for promotion, he did not pursue the issue within the 2 years prescribed by Army Regulation 135-155.  To the contrary, his application was received by the Board's staff on 8 August 2008, almost 11 years after he was notified that he had not been selected for promotion after the second consideration.

4.  The applicant believes that the error in his case is that he was not given the opportunity to review his records prior to him being considered for promotion, but then states that he was traveling extensively at the time with much of the travel being international.  As such, it would appear that if the applicant did not receive notification of his (then) pending promotion consideration, it was because he failed to provide the Army with a proper address.  As a CW2, he would be 


expected to know that he would be considered by a mandatory promotion board prior to him reaching 6 years time in grade.  His failure to provide a valid address at such a critical time in his military career was his omission, not an omission or error by the Army.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      _________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)                                         AR20080016374



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016374



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1