IN THE CASE OF:	  

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20080019078 


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 the following:

	a.  the Board review his military officer records and determine if they had been updated and were accurate prior to being submitted to the 2002 and 2003 Reserve Component Selection Boards (RCSB), specifically the inclusion of a law degree in his records, and promotion to major (MAJ) in the Individual Ready Reserve (IRR); or alternatively,

	b.  the Board allow him to resign his commission in the IRR retroactively to enable him to reenter military service as a commissioned officer; and

	c.  the Board expedite his request so that he will have the opportunity to apply for the position of Deputy Financial Manager in the Montana Army National Guard (MTARNG).

2.  The applicant states that he graduated from the U.S. Military Academy (USMA) in June 1991 and entered active duty as a Field Artillery (FA) commissioned officer.  He resigned his commission in 1997 and was transferred to the U.S. Army Reserve (USAR) IRR.  He remained in the IRR throughout law school from 1997 to 2000, but did not join a Reserve unit due to his ongoing education and family commitments, although he always intended to continue his military service.  During the 2001-2003 time frame, he received annual, though unexplained, correspondence from the USAR requesting he update his ARPC Form 3725-E (Army Reserve Address Status and Address Verification).  He submitted this form on three separate occasions and indicated that he had completed his Juris Doctor (JD) degree, but his records were never updated.  In August 2003, he received a notice of non-selection for promotion to MAJ and that he would be discharged from the USAR.  He was ultimately discharged on 1 February 2004.  He further states that the Board should grant him relief based on the fact that he is a USMA graduate with an exemplary record; he left the Army to seek a professional degree with an intent to eventually reenter military service; he remained in the IRR voluntarily; he was never advised that a two-time non-selection for promotion would lead to a discharge; he was never advised of the military educational requirements nor was he afforded the opportunity for additional military education; his military records were not up to date when presented to the promotion board; he thinks it was counterintuitive to resign his IRR commission when his intent was to reenter military service; and there are many waivable factors when applying for a position in military service.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 September 1997;

	b.  copies of ARPC Forms 3725-E, dated (issued) 22 July 2002 and 21 July 2003; 

	c.  a copy of his license to practice law certificate, issued by the Supreme Court of the State of North Carolina on 25 June 2008;

	d.  a copy of a memorandum, dated 16 October 2008, from the Joint Forces Headquarters, MTARNG, regarding the status of his application for a Technician vacancy;

	e.  a copy of a non-selection for promotion notification, issued by the U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command or HRC), St. Louis, MO, on 16 July 2002.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant be granted full relief, to correct material error and prevent injustice, in the form of vacating the results of the 2002 and 2003 RCSBs, reinstatement into the IRR, and consideration of his records by a special selection board (SSB).  In the alternative, he should be reinstated into the IRR and be permitted to resign his commission retroactively to prior to the 2003 RCSB.

2.  Counsel gives an overview of the applicant’s military background, transfer to the IRR, and completion of his JD degree.  Counsel goes on to state the following:

	a.  while in the IRR, the applicant exercised reasonable diligence to update his records by completing the ARPC Form 3725-E and returning it to the appropriate office.  However, despite his attempts, the information was not incorporated into his promotion file.  Accordingly, the 2002 and 2003 RCSBs did not have a complete record.  The applicant was never informed of the reason of his non-selection or who he could contact to discuss his non-selection or inquire about opportunities to improve his competitiveness.  He was ultimately discharged, completed a JD degree, and has been practicing law;

	b.  the applicant recently applied for a position as the Deputy Financial Advisor with the MTARNG, but was not offered the job because he is ineligible for acceptance into the ARNG due to his twice non-selection for promotion.  The applicant was never aware that his prior non-selection for promotion in the IRR precluded his appointment as a commissioned officer in the ARNG.  Army regulations offer little guidance to IRR officers on career management;

	c.  the material error of an incomplete promotion file lacking his JD degree coupled with the promotion board’s policy not to divulge information regarding non-selection and in the absence of any evidence in his record that he was not a strong candidate for promotion, makes it very likely that his selection would have been possible had the material errors not existed;

	d.  the applicant received no guidance from HRC officials regarding issues of personnel management such as promotions and records update.  His annual submission of the ARPC Form 3725 clearly shows he exercised reasonable diligence; and

	e.  the Army permits reappointment of twice non-selected for promotion officers for appointment into the ARNG in order to allow qualified, trained officers to continue their service.  The Board had previously recognized the injustice and granted relief in a similar situation.

3.  Counsel provides the following additional documentary evidence in support of the applicant’s request:

	a.  a copy of the applicant’s DA Form 1059 (Service School Academic Evaluation Report), dated 14 December 1995 (exhibit A);

	b.  copies of the applicant’s DA Forms 67-8 (U.S. Army Officer Evaluation Report) for the periods 920130-920627, 920628-930331, 930401-931115, 931116-940615, 940616-950615, 951215-960831, and 960901-970722 (exhibit A);

	c.  a copy of a memorandum, dated 25 April 2002, subject: results of a retention medical examination (exhibit A);

	d.  a copy of the applicant's DD Form 214, dated 1 September 1997 (exhibit B); 

	e.  a copy of the applicant’s biographical summary of military service (exhibit C);

	f.  a copy of a DA Form 873 (Certificate of Clearance and/or Security Determination), dated 16 November 2001 (exhibit D);

	g.  a copy of a letter, dated 18 August 2000, notification of successfully passing the North Carolina Bar examination (exhibit E);

	h.  copies of the 2002 and 2003, subject: notification of promotion non-selection memorandums (exhibit G);

	i.  a copy of a memorandum regarding reappointment of 2X non-select officers, issued by the National Guard Bureau on 12 December 2005 (exhibit H);

	j.  a copy of the U.S. Court of Federal Claims decision, Number 90-4025C, filed on 1 September 1993;

	k.  a copy of the Army Board for Correction of Military Records (ABCMR) Record of Proceedings in the case of Docket Number AR20080003552 (undated and apparently redacted) and Docket Number AR20040000143, dated 11 January 2005, as precedent cases (exhibits I and K).

	l.  a copy of an extract of Department of the Army Pamphlet 600-3 (Commissioned Officer Professional Development and Career Management), dated 11 December 2007 (exhibit J); and

	m.  a copy of an email exchange, dated 18 March 2009, regarding the status of his employment (exhibit L).



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 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 records show he graduated from the USMA, West Point, NY, and was awarded a bachelor degree in National Security/Public Affairs in 1991.  He was appointed as an FA second lieutenant and executed an oath of office on 1 June 1991.  He subsequently completed the FA Officer Basic Course in May 1992 and the FA Officer Advanced Course in December 1995, and was promoted to captain (CPT) on 1 June 1995.  He was honorably discharged on 1 September 1997 in the rank of CPT.  The DD Form 214 he was issued shows he completed 6 years, 3 months, and 1 day of active military service during this period.

3.  The applicant’s records further show that subsequent to his discharge, he was appointed in the USAR as an FA CPT and executed an oath of office on 2 September 1997.

4.  On 21 May 2000, the University of North Carolina conferred the degree of JD on the applicant and on 18 August 2000 he was notified that he passed the July 2000 North Carolina Bar Examination.

5.  On 21 July 2001, the applicant was mailed an annual ARPC Form 3725-E instructing him to submit any changes and/or corrections to his record and provide supporting documents within 10 days of receipt of this form.  The form also stated "If you have questions about this form or the information requested, contact your career manager at the indicated email."

6.  On 23 February 2002, the applicant completed the ARPC Form 3725-E indicating that he attained the degree of JD and returned the form with a copy of his college transcripts and copies of his children's birth certificates to 
HRC-St. Louis for inclusion in his file.  His records show the forms were received and filed in his record.

7.  On 16 July 2002, HRC-St. Louis notified the applicant by memorandum that his record was considered by the 4 March 2002 Department of the Army (DA) RCSB for promotion to MAJ; however, he was not selected.  The memorandum also notified him that all eligible officers should receive two opportunities for promotion and that if he remained eligible, he would be considered the following year.  It also notified him that selection boards do not record the reason for selection or non-selection and that his career manager might be able to assist him in improving his official file and advise him regarding specific actions which might have increased his potential for promotion.

8.  On 22 July 2002, the applicant was again mailed an annual ARPC Form 3725-E instructing him to submit any changes and/or corrections to his record and provide supporting documents within 10 days of receipt of this form.

9.  On 27 July 2002, the applicant completed the ARPC Form 3725-E indicating that he attained a JD degree and returned it to HRC-St. Louis for inclusion in his file.  His records show the form was received and filed in his record.

10.  On 7 August 2003, HRC-St. Louis notified the applicant by memorandum that his record was considered by the 3 March 2003 DA RCSB for promotion to MAJ; however, he was not selected.  The memorandum also notified him that as a result of his second non-selection, he must be discharged in accordance with Title 10, U.S. Code (USC), section 14513, or Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) effective 1 February 2004 unless he was eligible for and requested a transfer to the Retired Reserve.

11.  On 15 August 2003, HRC-St. Louis published Orders D-08-330502 directing the applicant’s honorable discharge from the USAR effective 1 February 2004 in accordance with Army Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers).

12.  An advisory opinion was obtained on 20 February 2009 in the processing of this case.  The Chief, Special Actions Branch, DA Promotions, HRC-St. Louis, recommended the applicant's request be disapproved.  He stated that the applicant was considered and non-selected for promotion by the 2002 and 2003 DA RCSBs.  The reasons for his non-selection are unknown because board deliberations are not a matter of record.  A review of the applicant’s board files revealed that his eligible officer evaluation reports (OERs), military education, and verification for the required education of his baccalaureate degree were viewed by the Boards.  The 2002 file included a letter from the Board of Law Examiners stating he had passed the North Carolina Bar Examination in 2000.  The letter was not included in the 2003 Board file.  The non-selection notification memorandum for 2002 was sent to the applicant on 16 July 2002.  Paragraph 3 informs him that he would be considered for the second time the following year and that he could contact his career manager for assistance in improving his file. He did not exercise reasonable diligence to update his 2003 board file.  Since the applicant's OERs and required education were reviewed by the boards he is not eligible for reconsideration for promotion.

13.  The applicant was provided with a copy of this advisory opinion on 25 February 2009.  He did not concur and submitted a rebuttal through his counsel as stated above (Counsel’s Request, Statement, and Evidence).

14.  Army Regulation 135-155, in effect at the time, prescribed the policies and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard (ARNG) of the United States and of commissioned and warrant officers of the USAR.  This regulation specified that a mandatory selection board would be convened each year to consider USAR and ARNG officers in an active Reserve status for promotion to CPT through lieutenant colonel.  This regulation also specified that a promotion from CPT to MAJ required completion of 12 years time in service and 7 years of time in grade.

15.  Army Regulation 135-155, in effect at the time, also provided that an ARNG or USAR officer who has been recommended for promotion to the next higher grade must be in an active Reserve status and meet the service requirements.  The regulation also provided that an officer who twice failed selection for promotion to the grade of MAJ must be removed from an active status.  The regulation further specified that promotion consideration/reconsideration by a special selection board may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.

16.  Paragraph 3-19 of Army Regulation 135-155 contains guidance on promotion reconsideration boards.  It defines a material error as one or more errors of such a nature that in the judgment of the reviewing official (or body) may have caused an individual’s non-selection by a promotion selection board.  Had such errors been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  It also states, in pertinent part, that in order to find a material error, a determination should be made that there is a fair risk that one or more of the following circumstances was responsible:  (a) the record erroneously reflected that an officer was ineligible for selection for educational or other reasons, if, in fact the officer was eligible for selection when the records were submitted to the original board for consideration; (b) one or more of the evaluation reports seen by the board were later deleted from an officer's Official Military Personnel File (OMPF); (c) one or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer's OMPF; (d) one or more existing evaluation reports as seen by the board in an officer's OMPF were later modified; (e) another person's adverse document had been filed in an officer's OMPF and was seen by the board; (f) an adverse document, required to be removed from an officer's OMPF as of the convening date of the board, was seen by the board; (g) the Silver Star or higher award was missing from an officer's OMPF; or (h) an officer's military or civilian educational level, including board certification level for AMEDD officers, as constituted in the officer's record (as seen by the board) was incorrect.

17.  Paragraph 3-19 also contains the following list of factors that will normally result in a material error determination:  (a) an officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses.  If eligible, this person will be considered by the next regularly scheduled selection board.  A special board will not be used; (b) an administrative error was immaterial, or, the officer in exercising reasonable diligence, could have discovered and corrected the error or omission in the OMPF, or the officer could have taken timely corrective action; and (c) letters or memorandums of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer's OMPF.

18.  Paragraph 3-20 contains guidance on information provided to SSBs.  It states that a promotion reconsideration board will consider the record of the officer as it should have been considered by the original board.  Commissioned officers considered by a mandatory promotion board on or after 1 October 1996 will be considered by a special selection board.  The records of officers being reconsidered by a special selection board will be compared with a sampling of those officers of the same competitive category who were recommended and who were not recommended for promotion by the original mandatory Reserve of the Army selection board.

19.  Title 10, USC, section 14502(b), states that in the case of an officer who was eligible for promotion and was considered for selection for promotion from in or above the promotion zone by a selection board but was not selected, the Secretary of the Military Department concerned may, under regulations prescribed by the Secretary of Defense, convene a special selection board to determine whether the officer should be recommended for promotion, if the Secretary determines that (a) the action of the selection board that considered the officer was contrary to law or involved material error of fact or material administrative error; or (b) the selection board did not have before it for its consideration material information.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was honorably discharged from the Regular Army in 1997 and was immediately appointed in the IUSAR (IRR).  While in the IRR, his record was considered by two consecutive promotion selection boards, but he was not selected for promotion.  Accordingly, he was honorably discharged.  He now contends that errors were made in his promotion file and that those errors resulted in his non-selection for promotion to MAJ and ultimate discharge and disqualification from civilian employment in the ARNG.

2.  The applicant’s graduation from the USMA, honorable service, noble intent to reenter military service, and professional education were considered; however, they are not sufficiently mitigating in granting him the requested relief.

3.  The applicant's contention that he was unaware that a two-time non-selection for promotion would lead to a discharge and/or lack of awareness of or opportunity for military education, were also noted.  However, implicit in the Army's promotion, retirement, and personnel systems are the universally accepted and frequently discussed principles that officers have a responsibility for their own careers.  The applicant was a USMA graduate and a senior CPT in the IRR.  He knew or should have known what it takes to get promoted.  His first non-selection memorandum clearly shows he was informed to contact his career manager who might be able to assist him in improving his official file and advise him regarding specific actions which might have increased his potential for promotion.

4.  With respect to his contention regarding the record update, the responsibility to review a member’s records for an upcoming promotion board belongs to that member.  It is not within this Board’s purview to review the applicant’s military officer records and determine if they had been updated and were accurate prior to being submitted to the promotion board.

5.  With respect to his contention that he should be reconsidered for promotion by an SSB because his 2003 promotion record did not contain his JD degree,  the evidence of record shows that the RCSBs considered the applicant’s OERs as well as his military and civilian education; however, he was not selected for promotion.  The absence of his JD degree in and of itself does not constitute a material error as defined by the regulation because all he needed to be 

educationally qualified was a bachelor degree.  Additionally, the fact he did not complete a review of his record prior to the 2003 board also does not constitute a material error.  Therefore, there is no basis for conducting an SSB.

6.  With respect to the contention that the Board granted relief in similar cases, each case is considered on its own merits.  The evidence of record shows that the circumstances surrounding the "precedent cases" presented by the applicant and/or his counsel differ from those of the applicant.  In one "precedent case" provided by the applicant, the individual was an ARNG Infantry Branch first lieutenant who was twice non-selected for promotion to CPT.  In the other "precedent case" the individual was an ARNG Armor Branch first lieutenant who was twice non-selected for promotion to CPT.

7.  In this case, the applicant is a West Point graduate, Field Artillery Branch CPT who was twice non-selected for promotion to MAJ.  The applicant's greater experience in the military should have led him to be more diligent in being responsible for his own career, again especially so when his first non-selection memorandum shows he was informed to contact his career manager for assistance in improving his official file and advice him regarding actions which might have increased his potential for promotion.

8.  With respect to his contention that he should be retroactively resigned for his employment prospective, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Furthermore, 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 did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief.

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)                                         AR20080019078



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ABCMR Record of Proceedings (cont)                                         AR20080019078



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