IN THE CASE OF:
BOARD DATE: 22 October 2009
DOCKET NUMBER: AR20090010276
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, removal of the U.S. Total Army Personnel Command, St. Louis, MO (now known as Human Resources Command, St. Louis [HRC-STL]) memorandum, dated 26 March 2002, notifying him of his second non-selection for promotion to captain, from his Official Military Personnel File (OMPF).
2. The applicant states he was not aware that he was passed over for captain until January 2009. He states he was promoted to captain on 3 April 2002. He states that the letter showing he was passed over prevented him from being promoted to major this past March 2009. He states he believes the letter showing his non-selection was sent in error. He states he has successfully commanded at the company level, worked as a current operations officer, and completed the Officer Basic Course, the Officer Advanced Course, Combined Arms Services Staff School, and the Functional Area 40 Space Officers Course, all as a captain. He states he was not made aware of the letter of non-selection until he transferred from the Colorado Army National Guard (COARNG) into the U.S. Army Reserve (USAR).
3. The applicant provides, in support of his application, copies of his letter of non-selection, his promotion orders from the South Carolina Army National Guard (SCARNG), his promotion letter from the National Guard Bureau (NGB), and his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 19 June 2001 to 18 June 2002.
CONSIDERATION OF EVIDENCE:
1. After having had prior enlisted service, State of South Carolina, Military Department, Orders 222-48, dated 17 November 1993, appointed the applicant a second lieutenant, effective 17 November 1993. An HRC-STL memorandum, dated 24 May 1994, shows he was appointed as a Reserve commissioned officer of the Army in the grade of second lieutenant. A DA Form 71 (Oath of Office - Military Personnel) shows he was again appointed as a second lieutenant in the SCARNG on 15 December 1994.
2. State of South Carolina, Military Department, Orders 87-2, dated 5 May 1997, promoted the applicant to first lieutenant effective 5 May 1997. He received Federal recognition in the grade of first lieutenant effective 15 May 1997.
3. On 13 August 1998, the applicant was released from the SCARNG and he was transferred to the USAR Control Group (Reinforcement).
4. On 19 June 2001, he was appointed a first lieutenant in the SCARNG and he received Federal recognition effective 19 June 2001.
5. HRC-STL memorandum, dated 26 March 2002, notified the applicant of his non-selection for promotion by the Department of the Army Reserve Components Selection Board (RCSB) that convened on 13 November 2001. He was also notified that this was his second non-selection and that he must be discharged no later than 1 October 2002, unless he was eligible for and requested transfer to the Retired Reserve. A copy of this letter is currently filed in the general administration section of his OMPF.
6. Evidence of any subsequent selection for promotion by a Department of the Army RCSB or by a special selection board is not available in the applicant's OMPF.
7. State of South Carolina, Military Department, Orders 096-819, dated 6 April 2002, promoted the applicant to captain effective 3 April 2002. An NGB memorandum, dated 16 July 2002, promoted him to captain in the Reserve of the Army for service in the Army National Guard of the United States. He was assigned a date of rank of 26 April 2002.
8. On 10 February 2004, the applicant was appointed a captain in the COARNG and he received Federal recognition, effective 10 February 2004.
9. On 2 February 2004, the applicant was ordered to active duty in an Active Guard Reserve (AGR) status in the grade of captain, effective 10 February 2004, for a period of 3 years. On 4 September 2006, he was ordered to full-time National Guard duty in an AGR status, effective 20 February 2007, for an indefinite period. On 21 March 2008, he was released from active duty by reason of unacceptable conduct. He had completed 4 years, 1 month, and 2 days of active service that was characterized as under honorable conditions. His Federal recognition was withdrawn, effective 5 January 2009, by reason of his transfer to the USAR.
10. On 30 January 2009, the applicant was transferred from the USAR Control Group (Reinforcement) to a troop program unit (TPU).
11. On 12 May 2009, the applicant was ordered to active duty for a period of
85 days for operational support (OP-ADOS). On 29 September 2009, he was ordered to active duty for the purpose of contingency operation for active duty operations support for a period of 365 days.
12. The OER submitted by the applicant shows his rank as a captain and his date of rank as 26 April 2002.
13. Army Regulation 600-8-104 (Military Personnel Information Management/
Records), provides in Table 2-1 (Composition of the OMPF) that letters of notification to officers considered for promotion but not selected are to be filed in the general administration section of their OMPF.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends the letter of non-selection was issued in error and should be removed from his OMPF.
2. According to the HRC-STL memorandum, dated 26 March 2002, upon the applicant's second non-selection for promotion he was to be discharged no later than 1 October 2002. There is no evidence available to show the applicant was selected for promotion by a subsequent Department of the Army RCSB or by a special selection board. Therefore, there is no evidence to show the memorandum from HRC-STL was issued in error or canceled based on the applicant's subsequent selection for promotion by a special selection board.
3. The applicant provides no explanation or evidence that indicates by what authority he was promoted to captain in the SCARNG on 3 April 2002 instead of being discharged no later than 1 October 2002 as directed by HRC.
4. For historical purposes, the Army has an interest in maintaining the accuracy of its records. The information contained in those records should reflect the conditions and circumstances that existed at the time the records were created. In the absence of a showing of material error or injustice, those records should not be changed.
5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
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) AR20090010276
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20090010276
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