IN THE CASE OF:	  

		BOARD DATE: 	        4 June 2009

		DOCKET NUMBER:  AR20090000042 


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, that he be given promotion reconsideration to the rank of major based on 1996 standards.

2.  The applicant states that he was not selected for promotion due to him not meeting the educational requirements.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) and Officer Record Brief (ORB) clearly showed that he did in fact meet the educational requirements.

3.  The applicant adds that he has recently started completing a packet to rejoin the Army National Guard as a Chaplain and needs to have this corrected.

4.  The applicant provides documents which he lists in his request.

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 was commissioned as a first lieutenant, entered active duty on 15 February 1987, served as a Chaplain, and was promoted to the rank of captain.  

3.  On 30 March 1992, the applicant was notified that his request for Voluntary Indefinite (VI) status was disapproved and, as a result, he would be released from active duty upon expiration of any remaining active duty service obligation.

4.  On 14 February 1993, the applicant was honorably released from active duty in the rank of captain by reason of expiration term of service and transferred to a U.S. Army Reserve (USAR) unit.

5.  The applicant's DD Form 214 shows that he had completed the Chaplain Officer Basic and Advanced Courses.  The applicant's ORB showed that he had completed the Chaplain Officer Basic and Advanced Courses and had completed the Combined Arms and Services Staff School.  It also showed that he had received a baccalaureate degree in 1983 and a masters degree in 1986.

6.  On 18 July 1994, an entry was made on an Activity Summary (apparently from the Chaplains Branch) which stated "Unable to notify chaplain of 
non selection.  No current phone number is available.  After reaching long distance operator I was able to speak with [the applicant's] wife.  She informed me that [the applicant] was going to resign his commission."

7.  On 9 May 1996, the applicant was sent a memorandum informing him that he was considered but not selected for promotion to major and, since this was the second time he was not selected, that he was to be removed from the Army Reserve.  In this memorandum the code "04" was placed next to the distribution line.

8.  On 25 September 1996, orders were published discharging the applicant from the USAR.

9.  In the processing of this case an advisory opinion was obtained from the Human Resources Command, St. Louis (HRC-STL) which stated that the applicant's file did not include verification of him completing his military education when he was considered and not selected for promotion by the 1996 Department of the Army Reserve Components Major Chaplain Selection Board.  The 
HRC-STL adds that since the applicant was educationally qualified, they recommend that the applicant's request be approved and he be given a Promotion Advisory Board.  The applicant was provided a copy of the advisory opinion and concurred with the recommendation.

10.  In the processing of this case the Board's staff contacted the HRC-STL and asked what records showed that the applicant was not selected for promotion due to his failure to meet military educational requirements.  The HRC-STL stated that the code "4" on the failure to be selected memorandum indicated failure to meet military education standards.

11.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board 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.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant's failure to be selected for promotion memorandum reflects a code which indicates that the applicant did not meet the military educational requirements for promotion, the possibility that this code was entered in error must be considered.

2.  In the absence of evidence to the contrary, it must be presumed that the promotion board had the applicant's DD Form 214 and his ORB, both of which showed his military education.  As such, the preponderance of evidence shows that the applicant's failure to be selected for promotion was not for failure to meet educational requirements and the code "4" was entered in error.

3.  If the applicant had pursued this in a timely manner, the reason for his failure to be selected would have been readily available.  The passage of 13 years before the applicant contested his failure to be selected effectively establishes a bar to the relief sought.  Simply put, relevant facts pertaining to his case are no longer available.

4.  In addition, it appears the Chaplains Branch attempted to contact the applicant after his first failure to be selected for promotion, but the applicant had not given his command his current address or telephone number as he was required to do and, when the Chaplains Branch finally located him, indicated through his wife that he was resigning his commission.  If the applicant had kept his command informed of his telephone number and address as he was required to do, and if he had returned the Chaplains Branch call, he would have been informed of the reason for his failure to be selected for promotion.  If the reason had been a failure to complete the required military education, he would have had more than adequate time to update his military records.

5.  While the HRC-STL advisory opinion was carefully considered, the weight of evidence in this case does not support the relief recommended. 

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)                                         AR20090000042





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ABCMR Record of Proceedings (cont)                                         AR20090000042



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