IN THE CASE OF:	  

		BOARD DATE:	  25 June 2009

		DOCKET NUMBER:  AR20090002539 


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 reconsideration of his 4 August 2008 application to submit his name to a special selection board for consideration under the 1996 promotion criteria for chief warrant officer three (CW3). 

2.  The applicant states that an examination of his Official Military Personnel File (OMPF) shows that several important documents, including the DA Form 1059 (Service School Academic Evaluation Report) for his March 1989 AH-1 Track Aviator Qualification course, were missing.  The DA Form 1059 was especially important because he was the Distinguished Graduate.  He also contends that his 1993 undergraduate and 1995 graduate level transcripts, several awards, and his official photograph were missing.  He reports that twice in 1994 he furnished copies of all these missing documents.  

3.  The applicant reports that he was not notified of non-selection in 1997.  He notes that the notification in his record was not addressed to his home of record. He points to the addresses used on several different documents and seems to imply that only his home of record should have been used for official correspondence.  He notes that he did list the San Jose address as his "current address" for the 1996 Flight Physical.  He also notes that the non-selection letter in his file is addressed to "Sa Jose" rather than San Jose and suggests that this may be another reason he did not receive it.  

4.  The applicant contends that he should not be held accountable for failure to pursue the non-selection issue within a reasonable period [he notes the 2-year window provided for in Army Regulation 135-155] because he should have been discharged from the Army Reserve either 8 years after his original enlistment or  8 years after his appointment as a warrant officer one (WO1).

5.  The applicant provides in support of his request for reconsideration of his case copies of the DA Form 1059, 9 January 1996 orders amending the 15 October 1995 orders for a medical examination, one page of a 9 March 1996 Report of Medical History, the 15 September 1997 Notification of Promotion Status, and the 14 March 1989 memorandum of appointment as a WO1.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080016374, on 9 December 2008.

2.  The applicant enlisted in the Regular Army on 6 October 1987 and was discharged on 13 March 1989 for the purpose of accepting an appointment as a warrant officer.  He was appointed a Warrant Officer One (WO1) and entered active duty on 14 March 1989.  He was promoted to CW2 on 14 February 1991.  He was separated on 30 June 1994 under the Special Separation Benefit Program and transferred to the U. S. Army Reserve.  

3.  The applicant was non-selected for promotion to CW3 for the second time in 1997.  By memorandum dated 15 September 1997, he was notified that he must be discharged in accordance with Title 10, U. S. Code, section 14513 or Army Regulation 140-10.  His discharge orders are not available. 

5.  Under the Special Separation Benefit, an eligible member of the armed forces would receive a lump sum payment equal to 15 percent of the Soldier’s annual basic pay multiplied by his years of active service.  Soldiers who applied for this incentive were required to enter into a written agreement to serve in the Ready Reserve for a period of not less than 3 years, in addition to any remaining military service obligation based in statute, following the separation from active duty.

6.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  It 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.

7.  Army Regulation 135-91 defines Army National Guard and U. S. Army Reserve service obligations.  It states that effective 1 June 1984 all personnel incur an 8-year statutory obligation on initial entry into the Armed Forces.

8.  Department of the Army Pamphlet 600-3 is intended as a professional development guide for individual officers.  In pertinent part, it states officers in many respects are ultimately their own career managers.  The key is to be involved in career development by making informed, logical decisions and acting on them.  One important element of an officer's involvement is the accurate reflection of capabilities in the official military personnel files maintained by Headquarters, Department of the Army.  The OMPF, Officer Record Brief, and career management individual file contain the data from which important career development decisions are made for selection, advancement, assignment, and retention.  Officers should review, update and maintain these records throughout their careers.

9.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that many important documents were missing from his records and that he should not be held accountable for any delay in seeking redress.  

2.  The applicant was not selected for promotion for the second time in 1997; therefore, presumably he was not selected for promotion for the first time in 1996.  However, he contends that twice in 1994 he furnished copies of all missing documents (although his 1995 graduate level transcripts could not have been furnished in 1994).  

3.  An officer is responsible for his own career.  A reasonably prudent officer would have also ensured that his files were complete prior to the 1996 and 1997 

promotion boards.  A reasonably prudent officer is aware of when he should be in the zone of consideration for promotion, even when his status changes from Active Army to Reserve Components.

4.  Failure to receive a notification of promotion status is an insufficient basis on which to grant the requested relief.  Again, a reasonably prudent officer would have been aware of when he was eligible for promotion and when the promotion boards would be convening and would have sought the results of the applicable promotion boards in a timely manner.  It appears the applicant waited over        10 years to raise this issue.

5.  The applicant contended that he should not be considered accountable for any time delay because he should have been discharged before the non-selection occurred.  He enlisted in the Regular Army on 6 October 1987, incurring a military service obligation until 5 October 1995.  He was separated from active duty on 30 June 1994 under the Special Separation Benefit Program. Soldiers who applied for this incentive were required to enter into a written agreement to serve in the Ready Reserve for a period of not less than 3 years following the separation from active duty.  His written agreement is not available; however, he was required to have served in the Ready Reserve at least until June 1997.  Therefore, there is an insufficient basis for arguing that he should have been discharged upon the completion of his military service obligation.

6.  More than a decade has elapsed since the applicant was discharged for being twice not selected for promotion.  Several of the documents (e.g., the 1994 written agreement and his 1997 discharge orders) that are related to his issue are not available.  In addition to the above reasons for not granting relief, an arbitrary ruling in his favor, without knowing what his records would have shown, would cause prejudice to the Government.  Since it is now almost 12 years after the applicant was twice not selected for promotion, the doctrine of laches is invoked in his case.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080016374, dated 9 December 2008 .




      _______ _   _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)                                         AR20090002539





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ABCMR Record of Proceedings (cont)                                         AR20090002539



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