IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090016564 


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 promotion to captain (CPT) in the Individual Ready Reserve (IRR) under the 1994 or 1995 criteria.  

2.  The applicant states that his military records were never transferred from the Guam Army National Guard (GUARNG) to the IRR upon his discharge on 4 April 1993.  Had his records been transferred, the board would have reviewed his complete records and would have determined if he were fully qualified for promotion to CPT.  He adds that the non-selection for promotion notification memorandum indicated that his records were reviewed.  This led him to believe that his records had been transferred from his previous GUARNG unit to the IRR. He did not consider that his records were never transferred until 2001 when he enlisted in the GUARNG as a staff sergeant.  He adds that in 2007 he reapplied for appointment as an officer in the GUARNG and needed his non-selection memoranda as part of the application.  He then requested his records from the National Personnel Records Center but the only things he received were the two non-selection memoranda and his chronological statement of retirement points.  

3.  The applicant also states that while reviewing his reappointment packet, he noticed that his original military record, during his time as an officer, was being used for the preparation of the reappointment packet.  He knows this because the original DA Form 2-1 (Personnel Qualification Record) was there.  His reappointment packet was ultimately approved and he was appointed as an officer in the GUARNG.  He concludes that a material error occurred in that his complete record was not available or properly submitted to the promotion board and that the board was unable to consider his evaluation reports and his civilian education records and that he should be entitled to a Special Selection Board (SSB).

4.  The applicant provides a complete copy of his service records including promotion, award, and discharge orders; Officer Evaluation Reports (OERs); appointment orders; oath of office; reassignment orders; certificates of training and achievement; letters of appreciation; annual training orders; civilian education documents; and various other personnel-related documents, dated on miscellaneous dates throughout his military service, in support of 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.  Having had prior enlisted service in the GUARNG, the applicant's records show he was appointed as a Finance Corps (FC) second lieutenant in the GUARNG and executed an oath of office on 19 August 1988.  He subsequently completed the Finance Officer Basic Course on 14 December 1988 and was promoted to first lieutenant (1LT) on 18 August 1991.

3.  The applicant's records also show he was discharged from the ARNG on 4 April 1993 in the rank of 1LT and transferred to the U.S. Army Reserve (USAR) Control Group (IRR).

4.  The applicant’s records further show that subsequent to his discharge, he was appointed in the USAR as a FC 1LT and executed an oath of office on 5 April 1993.  

5.  On 30 May 1993, the applicant was awarded a Bachelor of Business Administration degree from the University of Guam.

6.  On 27 January 1995, by memorandum, the U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command or USAHRC)-St. Louis, MO, notified the applicant that his record was considered by the 1995 Department of the Army (DA) Reserve Components Selection Board (RCSB) that convened on 15 November 1994 for promotion to CPT; however, he was not selected.  The memorandum also notified him that one of the many possible reasons for the non-selection may have been that his record, when reviewed by the board, did not reveal that he had completed the military education requirements as shown in Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers).  The notification also stated that it should be noted that the military education prerequisite was only one aspect that boards consider and the fact that he could be eligible for reconsideration by an SSB should not be construed in any way that he would be selected for promotion.

7.  On 1 March 1996, by memorandum, USAHRC-St. Louis, MO notified the applicant that his record was considered by the 1996 DA RCSB that convened on 15 November 1995 for promotion to CPT; however, he was not selected.  The memorandum also notified him that as a result of his second non-selection, he must be discharged in accordance with Title 10, U.S. Code (USC), section 14513 or AR 140-10 (Assignments, Attachments, Details, and Transfers), unless he was eligible for and requested a transfer to the Retired Reserve.

8.  On 10 May 1996, USAHRC-St. Louis, MO published orders directing the applicant’s honorable discharge from the USAR effective 10 May 1996 in accordance with AR 135-175 (Separation of Officers).  A copy of the applicant's discharge orders is not available for review with this case.

9.  After a break in service, the applicant enlisted in the GUARNG in the grade of staff sergeant on 30 August 2001.  He held military occupational specialty 74B (Systems Operator/Analyst) and performed duties in various staff positions.  He was honorably discharged on 28 January 2009 for the purpose of accepting appointment as a commissioned officer. 

10.  On 29 January 2009, the applicant was appointed as an FC 1LT in the GUARNG and executed an oath of office on the same date.  He was initially assigned to the Contracting Management Office, GUARNG, Barrigada, GU, and was recently ordered to active duty for operational support and assigned to the Defense Finance and Accounting Service, Indianapolis, IN.

11.  An advisory opinion was obtained on 4 November 2009 in the processing of this case.  An official at the Special Actions Branch, DA Promotions, USAHRC-St. Louis, recommended the applicant’s request be disapproved.  The official stated that although the applicant's promotion board consideration files do not exist, his records show he was awarded a Bachelor of Business Administration degree in May 1993 and had previously completed the Finance Officer Basic Course in December 1988.  These two documents would have made him educationally qualified at the time of board consideration.  In addition, his official records show he had three OERs prior to 1991 but only one was senior rater profiled.  Un-profiled OERs are not allowed to be seen by promotion boards and since these OER are on an obsolete DA Form 67-8 and they are ARNG reports, they are no longer eligible to be re-profiled.  Even with his education documents, without profiled OERs, it is unknown whether the applicant would have been selected for promotion since it happened over a significant period ago and this office cannot determine everything the promotion selection board saw.  If the applicant were to be re-considered, his education document would be seen, only one profiled OER as a 2LT would be seen, the two un-profiled OERs would not be seen, and there would be no 1LT OERs.  There would be little chance of getting selected to CPT.  But, even if selected to CPT, the applicant would immediately be eligible for major.  He would have no CPT OERs and would not have met the military education requirements.  

12.  The applicant was provided with a copy of this advisory opinion on 29 October 2009.  He submitted a rebuttal in which he stated that the advisory opinion stated that he was not selected for promotion due to not meeting the required education.  However, his records clearly show that he completed the Finance Officer Basic Course and was awarded a bachelor degree prior to the convening date of the promotion board.  By regulation, this constitutes a material error and since his non-selection occurred prior to 1 October 1996, he is entitled to an SSB. 

13.  AR 135-155, in effect at the time, prescribed the policies and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the USAR.  This regulation specified that a mandatory selection board would be convened each year to consider Reserve and ARNG officers in an active Reserve status for promotion to CPT through lieutenant colonel.  At the time, promotion from 1LT to CPT required completion of 6 years time in service and 4 years time in grade.

14.  Title 10, USC, section 14502(b) states that in the case of an officer who was eligible for promotion and was considered for selection for promotion from in or above the promotion zone by a selection board but was not selected, the Secretary of the military department concerned may, under regulations prescribed by the Secretary of Defense, convene an SSB to determine whether the officer should be recommended for promotion, if the Secretary determines that (a) the action of the selection board that considered the officer was contrary to law or involved material error of fact or material administrative error; or (b) the selection board did not have before it for its consideration material information.

15.  AR 135-155, in effect at the time, also provided that an ARNG or USAR officer who has been recommended for promotion to the next higher grade must have been in an active Reserve status and must have met the service requirements.  The regulation also provided that an officer who twice failed selection for promotion to the grade of major would be removed from an      active status.  The regulation further specified that promotion consideration/reconsideration by an SSB could only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.

16.  Paragraph 3-19 of AR 135-155 contains guidance on promotion reconsideration boards.  It states, in pertinent part, that in order to find a material error, a determination should be made that there is a fair risk that one or more of the following circumstances was responsible:  (1)  The record erroneously reflected that an officer was ineligible for selection for educational or other reasons when in fact the officer was eligible for selection when the records were submitted to the original board for consideration; (2)  One or more of the evaluation reports seen by the board were later deleted from an officer's OMPF (Official Military Personnel File); (3)  One or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer's OMPF; (4)  One or more existing evaluation reports as seen by the board in an officer's OMPF were later modified; (5)  Another person's adverse document had been filed in an officer's OMPF and was seen by the board; (6)  An adverse document, required to be removed from an officer's OMPF as of the convening date of the board, was seen by the board; (7)  The Silver Star or higher award was missing from an officer's OMPF; or (8)  An officer's military or civilian educational level, including board certification level for AMEDD (Army Medical Department) officers, as constituted in the officer's record (as seen by the board) was incorrect. 

17.  Paragraph 3-19 also contains the following list of factors that will normally result in a material error determination:  (1)  Officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses.  If eligible, this person will be considered by the next regularly scheduled selection board.  A special board will not be used.; (2)  An administrative error was immaterial, or, the officer in exercising reasonable diligence, could have discovered and corrected the error or omission in the OMPF, or the officer could have taken timely corrective action; and (3) Letters or memoranda of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer's OMPF. 
18.  Paragraph 3-20 contains guidance on information provided to SSBs.  It states that a promotion reconsideration board will consider the record of the officer as it should have been considered by the original board.  Commissioned officers considered by a mandatory promotion board on or after 1 October 1996 will be considered by an SSB.  The records of officers being reconsidered by an SSB will be compared with a sampling of those officers of the same competitive category who were recommended and who were not recommended for promotion by the original mandatory Reserve of the Army selection board.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was discharged from the GUARNG in April 1993.  He was subsequently transferred to the IRR.  While in the IRR, his record was considered by two consecutive promotion selection boards, but he was not selected for promotion.  Accordingly, he was honorably discharged.

2.  The applicant's promotion file is not available for review in this case.  However, the first notification memorandum notified him that one of the many possible reasons for the non-selection may have been that his record, when reviewed by the board, did not reveal that he had completed the military education requirements as shown in AR 135-155.  The notification also stated that it should be noted that the military education prerequisite was only one aspect that boards consider and the fact that he could be eligible for reconsideration by an SSB should not be construed in any way that he would be selected for promotion.  At that time the applicant should have reviewed his records to determine what else might have been missing from his records.

3.  With respect to the transfer of records from the GUARNG to the IRR, the responsibility to review a member’s records for an upcoming promotion board belongs to that member.  

4.  Implicit in the Army's promotion, retirement, 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 IRR.  He knew or should have known what it takes to get promoted.  His first non-selection memorandum clearly alerted him to the many requirements of AR    135-155 for promotion to CPT.  The fact that he did not complete a review of his record does not constitute a material error.  Therefore, there is no basis for conducting an SSB.  

5.  The applicant’s subsequent enlistment in the GUARNG, his reappointment as a commissioned officer, and his overall honorable service are noted.  However, they are not sufficiently mitigating to grant him the requested relief.  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 did not submit evidence that would satisfy this requirement.  In view of the foregoing, the applicant is not entitled to relief.

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)                                         AR20090016564



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ABCMR Record of Proceedings (cont)                                         AR20090016564



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