BOARD DATE: 8 July 2010
DOCKET NUMBER: AR20090021123
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 information regarding his twice non-selection for promotion to major (MAJ/O-3) be removed from his Official Military Personnel File (OMPF).
2. The applicant states the following:
a. the Army National Guard (ARNG) lost his DA Form 201 (Military
Personnel Records Jacket (MPRJ)) for nearly three years and as a result, he was not able to attend phase II of his Officer Advanced Course during that time;
b. at the time his MPRJ was found, he was seeking transfer to a position in
the United States Air Force (USAF) Reserve that he was accepted for, and scheduled to attend the second phase of the Officer Advanced Course;
c. a Military Police (MP) branch official requested he not attend the second
phase of the Officer Advanced Course to allow another Soldier to attend given he received a conditional release from the Individual Ready Reserve to fill a USAF position; and
d. his transfer order was held pending the MAJ promotion board results;
however, he was not eligible for promotion because he did not complete the aforementioned course.
3. The applicant provides a self-authored statement and memoranda dated 7 February and 16 July 2002 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military record shows that after having prior Reserve Component (RC) and active duty service in the United States Air Force and the United States Army, he was appointed a Reserve commissioned officer in the rank of captain (CPT)/O-3 in the New York Army National Guard (NYARNG) on 1 February 1996.
3. On 1 May 1998, the applicant was honorably discharged from the NYARNG and transferred to the United States Army Reserve (USAR) in a Troop Program Unit (TPU). He served in area of concentration 35D (All Source Intelligence).
4. On 2 February 2001, the 77th Regional Support Command issued Orders Number 01-033-041 which directed the applicants reassignment from his TPU to the USAR Control Group by reason of Unsatisfactory Participant effective 30 January 2001.
5. On 16 Jul 2002, the applicant was notified a Department of the Army Reserve Components Selection Board considered him for promotion on 4 March 2002, but he was not selected. He was further informed that because this was his second nonselection, he would be discharged from the USAR no later than 1 January 2003.
6. On 11 December 2002, the United States Army Reserve Personnel Command issued Orders Number D-12-248603, directing the applicants discharge from the USAR effective 1 January 2003.
7. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System. Chapter 2 of the records regulation contains guidance on the OMPF. Table 2-1 outlines the composition of the OMPF and it states, in regards to promotions and reductions that letters of notification announcing board results will be filed in the general administration (GA) portion of the OMPF, and that allied documents will be filed in the restricted portion of the OMPF. Paragraph 2-4 states that once placed in the OMPF, documents become a permanent part of that file and will not be removed or moved to another part of the OMPF unless directed by the appropriate authority.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his notification letter informing him of his twice nonselection for promotion to MAJ should be removed from of his OMPF has been carefully considered. However, there is insufficient evidence to support this claim.
2. By regulation, letters of notification announcing board results will be filed in the GA portion of the OMPF and become a permanent part of that file. As a result, absent any evidence of error or injustice, there is an insufficient evidentiary basis to remove these properly filed documents at this time.
3. 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) AR20090021123
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