IN THE CASE OF:	

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090012430 


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, reinstatement into the New Jersey Army National Guard (NJARNG) and promotion reconsideration to captain (CPT).

2.  The applicant states, in effect, that he was passed over for promotion to CPT in 1993 and in 1994.  He states he was never notified of the first pass over, which neutralized his ability to correct errors and/or to submit missing documents identified by the promotion board.  He also states that in 1993 and 1994 he received notice by mail that he was to be considered for promotion to CPT.  Both notifications were identical and the 1994 gave no indication he had been previously passed over for promotion in 1993, nor did they alert him to the consequences of a second pass over.  He states he submitted his Officer Evaluation Reports (OERs) and college transcripts through his chain of command and was under the impression that his Official Military Personnel File (OMPF) was correct and complete.

3.  The applicant also states that in 1994, his entire battalion deactivated and he was honorably discharged from the NJARNG, which he wrongfully assumed was due to his unit's closing.  However, when he attempted to join an engineer unit in the state of Delaware in August 1995, he learned that he had been passed over twice for promotion to CPT.  He states he was never notified or counseled on his promotion non-selection by his chain of command, and his non-selection notifications were found in his OMPF in August 1995.  He now requests the opportunity to correct errors and/or submit missing documents identified by the promotion board and is seeking reappointment and/or reconsideration for promotion to CPT.
4.  The applicant provides the following documents in support of his application:  Department of Military and Veterans Affairs letters, dated 21 May 1993 and 
9 September 1994; Non-Selection for Promotion first endorsements, dated 
1 March 1994, 8 June 1994, and 27 January 1995; and U.S. Total Army Personnel Command, St. Louis, MO, Notifications of Promotion Status, dated
1 March 1994 and 27 January 1995.

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 is currently serving in the NJARNG in an enlisted status as a staff sergeant (SSG).

3.  The applicant's record shows he initially enlisted in the U.S. Army Reserve (USAR) on 24 March 1984.  He served until being honorably discharged on
20 November 1985 in order to enlist in the ARNG.

4.  On 21 November 1985, the applicant enlisted in the ARNG in the rank of private (PV2).  He continuously served for a period of 1 year, 7 months, and
6 days until being honorably discharged on 26 June 1987 in order to accept a commission as a second lieutenant (2LT) in the NJARNG.

5.  Department of Defense, Trenton, NJ, Orders Number 126-8, dated 7 July 1987, appointed the applicant as a 2LT in the NJARNG with an effective date of 27 June 1987.

6.  National Guard Bureau (NGB) Special Orders Number 170 AR, dated 
4 September 1987, extended the applicant Federal recognition in the ARNG for the purpose of initial appointment in the rank of 2LT, effective 27 June 1987.


7.  A State of New Jersey, Department of Military and Veterans Affairs letter, dated 21 May 1993, notified the applicant that a Department of the Army (DA) Mandatory Selection Board was scheduled to convene on 23 November 1993 to consider all eligible first lieutenants (1LTs) for promotion to CPT.

8.  On 8 June 1994, the NJARNG forwarded a 1 March 1994 U.S. Total Army Personnel Command memorandum to the applicant.  This memorandum notified the applicant he had been considered for promotion to CPT by the Reserve Selection Board but not selected for promotion and this constituted his first non-selection.  It also stated that he would be considered by a second board providing he was in a promotable status, and that his official file would be seen by a new board, to include any additions since the last consideration.  It further informed him that if he was not selected by the next board he would be subject to removal from an active status in accordance with current regulations

9.  On 9 September 1994, the applicant was notified that a DA Mandatory Selection board convening on 15 November 1994 was considering eligible 1LTs for promotion to CPT.

10.  On 27 January 1995, the applicant was notified that he had been considered but not selected for promotion to CPT and as a result of this second non-selection, he must be separated from the Army.

11.  NGB Special Orders Number 45 AR, dated 29 April 1995, withdrew the applicant's Federal recognition as a 1LT, effective 8 May 1995.

12.  State of New Jersey, Department of Military and Veterans Affairs, Orders Number 093-034, dated 3 April 1995, honorably separated the applicant from the ARNG and transferred him to the USAR Control Group (Reinforcement), effective 12 June 1995.

13.  USAR Personnel Command Orders D-02-305416, dated 11 February 2003, honorably discharged the applicant from the USAR, effective 25 February 2003.

14.  In connection with the processing of this case, on 14 August 2009, an advisory opinion was received from the Chief, Special Actions Branch, DA Promotions, U.S. Army Human Resources Command (USAHRC), St. Louis.  This official stated that electronic messages are submitted worldwide announcing the convening dates of selection boards and that the applicant had been considered and not selected as an ARNG officer by the 1994 and 1995 CPT Army Promotion List DA Reserve Components Selection Boards.

15.  The advisory official states that the applicant had stated he was not given notice after being non-selected for promotion the first time in 1993 and that there was no wording alerting him to the consequences of a second non-selection.  However, this is incorrect in that the first non-selection letter, dated 1 March 1994, states he would go to a second board providing he was in a promotable status, and that his official file would be seen by a new board to include any additions since the last consideration.  It further stipulated that if he was not selected by the next board he would be subject to removal from an active status in accordance with current regulations.  The advisory official stated that since the applicant was an ARNG officer the non-selection letters are issued to the Adjutant General of the State in which he has Federal recognition and is a member of and they should have notified him at the time of the selection board.

16.  The advisory official further stated that in accordance with Army Regulation 135-155, special selection boards (SSBs) may be convened to prevent injustice to an officer or former officer if it is determined that a material error existed when his/her record was seen by the board.  It also states that DA will normally not determine that a material error existed if an administrative error was immaterial or the officer, in exercising reasonable diligence, could have discovered the error.  Therefore, since the applicant could have taken timely corrective action at the time of the selection boards being released and he did not, the advisory official recommended denial of the applicants request for an SSB.

17.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On
15 January 2010, the applicant submitted his response to the advisory opinion.  He stated that upon reading the advisory opinion he was unsettled to learn that USAHRC strongly recommended denial of his request for reappointment and/or reconsideration for promotion to CPT.  However, he was comforted to know that based on the number of advisory opinions USAHRC provides and the completion of his advisory opinion within a month may be why the advisory opinion cites inaccuracies in order to reach their conclusion.  The applicant states that USAHRC claims that electronic messages are submitted worldwide announcing the convene dates of selection boards.  However, this was not true during the period in question between 1993 and 1995.  He states he was notified of the selection board meeting by a letter along with a microfiche sent via U.S. Postal Mail.

18.  The applicant also states he does not dispute the fact he was notified that a selection board was convening but that he was never notified of the results of the board which would have empowered him to make corrections and be prepared 
for the second selection board.  He states this is not the fault of USAHRC, but the fault of the system and his chain of command at the time which had started deactivation process in the spring of 1994.

19.  The applicant further states it is true that notification letters exist and must have existed; however, they were never forwarded to him or placed in his OMPF maintained at the battalion.  The first time he became aware of his non-selection status and the consequences thereof was after his separation in June 1995.  Furthermore, USAHRC claims he had time to take correction actions between the two selection boards; however, his unit was deactivating and his priority was the welfare of his subordinates.  They were his priority and he trusted his superiors and the Army to do the same for him.

20.  Army Regulation 135-175 prescribes the policies and procedures for the separation of Reserve Component officers.  Chapter 4, paragraph 4-4a(5), of this regulation specifies that an officer in the grade of first lieutenant, captain, or major, who has completed their statutory military service obligation, will be discharged for failure to be selected for promotion after the second consideration by a Reserve Components Selection Board (RCSB).

21.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve and ARNG officers.  This regulation specifies that a first lieutenant on the Reserve Active Status List who has failed to be selected for promotion to captain for the second time and whose name is not on a list of officers recommended for promotion to captain will be removed from active status no later than 7 months after the final approval authority approves the board report which considered the officer for the second time.  

22.  Army Regulation 135-155 also specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record 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 civilian and/or military schooling.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that he be reinstated into the NJARNG and be reconsidered for promotion to CPT based on his not being properly notified of his non-selection was carefully considered.  

2.  The evidence of record shows the applicant was twice considered and not selected for promotion to CPT and as a result, he was discharged in accordance with the applicable law and regulation.

3.  The applicant's first non-selection memorandum, dated 1 March 1994, clearly notified him that his records would be considered by the following year's board and that if he were not selected, he would be subject to removal from an active status in accordance with applicable regulations.  This notification was not only issued by HRC, but was also provided to the applicant by his local ARNG unit, as evidenced by an endorsement on file in the record.  As a result, contrary to the applicant's assertions, it must be presumed he was properly informed of his non-selection.

4.  Implicit in the Army's promotion and personnel systems are the universally accepted and frequently discussed principles that officers have a responsibility for their own careers.  The applicant was a lieutenant in the ARNG.  He knew or should have known what it takes to get promoted.  He should have known when he would have been eligible for promotion consideration and should have been looking for information on when the board(s) would be held.  He had a responsibility to update his records and present a complete and accurate file before each promotion board.  Further, even had he not been formally notified, he should have been aware of his non-selection given he was not promoted or added to a promotion list subsequent to the first promotion board adjourning.

5.  In regard to the applicant's request for reconsideration of his promotion file by an SSB, the regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record 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 applicant failed to show there was a material error that would warrant consideration of his file by an SSB.

6.  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 or that would support amendment of the original Board decision in this 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 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)                                         AR20090012430



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ABCMR Record of Proceedings (cont)                                         AR20090012430



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