BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090007630 


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 the Notification of Promotion Status, dated 
18 June 1998, be removed from his military records.  He also requests, in effect, a waiver to move from the Retired Reserve status to the Reserve recall status.  
 
2.  The applicant states that he was separated from the Army in 1992, that he tried on several occasions to obtain a drilling position with an Army Reserve unit but was unsuccessful, and that he contacted the Armor Branch manager of the Reserve Component but training slots were scarce during the Armed Forces drawdown.  He wants to serve his country and he has been conditionally accepted for a training slot in the 95th Training Division IET [initial entry training] but he must receive permission or a waiver to move from the Retired Reserve status to Reserve Recall status.  He indicates that he was passed over twice for promotion to lieutenant colonel while he was in the Individual Ready Reserve (IRR) due to his failure to complete "CSGLS" and to maintain the requisite drill points, not for poor duty performance.  He points out that his first priority since he was separated from the service has been to support his young family, that he has worked two jobs, and that he has been a law abiding citizen.  He asks that his record be purged of the two-time passover for promotion to lieutenant colonel because he cannot be moved from Retired Reserve status to IRR status to Reserve drill status without it.    

3.  The applicant also states that should the Board decide to deny relief in his case, he would like to be advised on how to resign his commission so he can enlist in the U.S. Army Reserve (USAR).

4.  The applicant provides no documentary evidence 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 was born on 8 December 1954.  He was appointed a second lieutenant in the USAR on 11 May 1978 and he entered active duty on 30 May 1978.  He was commissioned a major in the Regular Army on 1 February 1990.  On 10 August 1992, he was honorably discharged from the Regular Army for the Voluntary Incentive Program.  He completed 14 years, 2 months, and 11 days of creditable active service.  On 11 August 1992, he was appointed a major in the USAR on 11 August 1992. 

3.  By memorandum dated 18 June 1998, the applicant was notified that he had been considered for promotion but was not selected by a Department of the Army Reserve Components Selection Board.  

4.  On 12 January 1999, the applicant was voluntarily transferred to the Retired Reserve.  His U.S. Army Reserve Personnel Command Chronological Statement of Retirement Points shows no qualifying years while he served in the IRR.

5.  A review of the applicant’s service section of his Official Military Personnel File (OMPF) on the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the Notification of Promotion Status in question.  

6.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  Table 2-1 of this Army regulation shows that letters of notification to officers considered for promotion but not selected are filed in the service section of the OMPF.

7.  Chapter 6 of Army Regulation 135-155 (Separation of Officers) provides for resignations of Reserve officers of the Army.

8.  Army Regulation 601-10 (Management and Recall to Active Duty of Retired Soldiers of the Army in Support of Mobilization and Peacetime Operations) covers the management and mobilization of retired Soldiers of the Army during war, national emergency, or when otherwise authorized by law.  It provides for peacetime management of retired military personnel in preparation for their use to meet national defense requirements.  It sets policies and procedures for the voluntary and involuntary pre-assignment of retired Soldiers; discusses the Secretary of the Army's authorization to order Regular and Reserve Army retired Soldiers to active duty; contains the medical examination policy for retired Soldiers subject to recall; clarifies absentee processing; updates screening of retired Soldiers who occupy key positions; and lists agencies having emergency functions.  This regulation also gives guidance for determining the need for recalled retired Soldier training; clarifies the statutory authority for retired Soldiers mobilized under 10 USC 688 (a); updates the record keeping system; and adds policy for recalling retired Soldiers during a partial mobilization.

9.  Chapter 3 of Army Regulation 601-210 (Active and Reserve Components Enlistment Program ) refers to enlistment in the Regular Army, Army Reserve, or Army National Guard for prior service applicants.  Paragraph 3-3b of this regulation states that an applicant is eligible for reenlistment in the USAR or Army National Guard if he or she is not less than 18 years of age and has not reached their 57th birthday and can qualify for retire pay by age 62.  To be eligible for nonregular retired pay, an individual must meet eligibility criteria outlined in Army Regulation 135-180.  Waiver requests will be considered, if applicant is a former enlisted member of the Army Forces and last separated with an honorable discharge.

10.  Paragraph 6-10 (Criteria for unqualified resignations) of Army Regulation 
135-175 (Separation of Officers)  states, in pertinent part, that resignations submitted by nonobligated officers may be accepted, except under the following conditions:  (1) the officer is under investigation or charges, being considered for administrative involuntary separation, in the hands of civil authorities, insane, or in default with respect to public property or public funds; (2) in time of war or national emergency declared by Congress: or (3) when Headquarters Department of the Army, by separate instructions, restricts the acceptance of such resignations due to national emergency proclaimed by the President or under other conditions which may necessitate such action (i.e., peacetime expansion of the Active Army).   

11.  Paragraph 6-11 (Procedures) of Army Regulation 135-175 states, in pertinent part, that resignations will be submitted in accordance with the format in figure 6-2 and confirmation of acceptance of resignation will be announced in accordance with the orders format prescribed in Army Regulation 310-10. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, the governing regulation states that letters of notification to officers considered for promotion but not selected will be filed in the service section of the OMPF.

2.  There is no evidence that the Notification of Promotion Status was improperly issued.  The 18 June 1998 Notification of Promotion Status was properly filed in the service section of the applicant’s OMPF.  Therefore, there is no basis for granting the applicant's request to remove this document from his military records.    

3.  Since a request for a waiver is not a records correction, the applicant is referred to Army Regulation 601-210 for further guidance on his request for a waiver to move from the Retired Reserve status to the Reserve recall status.  

4.  The applicant's request for guidance on a resignation was noted.  He is referred to Army Regulation 135-175, chapter 6. 

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)                                         AR20090007630





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090007630



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1