IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100007481 


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 correction of his military records to change the effective date of his promotion to captain/pay grade O-3, to expunge the notice of his 2-time non-selection for promotion to major/pay grade O-4, and to rescind his discharge orders.

2.  The applicant states he was promoted to captain effective 10 February 2005, with a date of rank of 17 December 1992.  This resulted in his being immediately presented for promotion to major in 2006 before he had the opportunity or time to complete the military educational requirements for promotion.  He wants the time to complete the military education and then to be considered for promotion to lieutenant colonel/pay grade O-5.

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Orders B-05-501416, U.S. Army Human Resources Command, St. Louis (HRC-STL), Missouri, dated 4 May 2005, promoted the applicant to captain/pay grade O-3 effective 10 February 2005 with a date of rank of 17 December 1992.

2.  On 3 July 2007, the Chief, Office of Promotions, Reserve Components, 
HRC-STL, sent the applicant a memorandum notifying him that he had been twice non-selected for promotion to major.

3.  Orders 09-335-00001, U.S. Army Reserve Command, Fort McPherson, Georgia, dated 1 December 2009, as amended by Orders 09-348-00001, dated 14 December 2009, discharged the applicant from the USAR effective 9 January 2009.

4.  In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army Promotions, HRC-STL.  The opinion stated that the available records show the applicant had been considered and selected for promotion to captain by the 1992 DA Reserve Components Selection Board.  The applicant was a member of the Individual Ready Reserve at the time.  The available records indicate that his security clearance may have been outdated resulting in his not being promoted in a timely manner.  In May 2005, the DA Promotions Office issued his promotion orders to captain effective 10 February 2005 with a date of rank of 17 December 1992.  This immediately made him eligible for consideration for major in 2006.  The available records do not explain what generated his promotion at that time, but it may have been due to a change in policy allowing officers to be promoted without having a valid security clearance.  The applicant was subsequently considered for promotion to major and non-selected by the 2006 through 2010 major selection boards.  His non-selection was due to not completing an officer advanced course or equivalent, which is the military education requirement for promotion to major.  The opinion also notes that the applicant's records were flagged as of 29 October 2007 for failing the Army Physical Fitness Test.

5.  A copy of the advisory opinion was sent to the applicant on 28 July 2010 for his information and opportunity to rebut.  No response has been received.

6.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides that all personnel information recorded under the authority of this regulation is the property of the U.S. Government.  Once recorded, it will not be removed except as provided by law or this regulation.  Once placed in the official military personnel file (OMPF), the document becomes a permanent part of that file. The document will not be removed from a section or moved to another part of the OMPF unless directed by one or more of the following:  (1) the Army Board for Correction of Military Records; (2) the Department of the Army Suitability Evaluation Board; (3) Army appeal boards; (4) Chief, Appeals and Corrections Branch, Human Resources Command; (5) the OMPF custodian when documents have been improperly filed; (6) Commander, Human Resources Command, ATTN:  HRC-PDO-PO, as an approved policy change to this regulation; (7) Chief, Appeals Branch, HRC-STL; and (8) Chief, Appeals Branch, National Guard Personnel Center.  Documents designated for transfer from the performance or service sections will be placed in the restricted section, if authorized.  When discovered by the custodian or requested by the Soldier concerned, transfer restricted section documents mistakenly filed in the performance or service section to the restricted section.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to change the effective date of his promotion to captain, to expunge the notice of his 2-time non-selection for promotion to major, and to rescind his discharge orders.

2.  The applicant argues that his promotion to captain effective 10 February 2005 with a date of rank of 17 December 1992 did not afford him the opportunity to complete the military education requirement, resulting in his being non-selected for promotion.  He further argues that his discharge should be voided so that he can now complete the education requirement and be considered for promotion to lieutenant colonel.

3.  The applicant has not provided sufficient evidence or argument to form a basis for removing the notice of his 2-time non-selection for promotion to major from his OMPF or for rescinding his discharge orders.

4.  The evidence clearly shows the applicant was discharged on 9 January 2009.  His desire to void this action so that he may have more time to complete the military education requirement is inappropriate.  He was promoted to captain in 2005 and was not discharged until 2009.  This was more than enough time to complete the training.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20100007481



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ABCMR Record of Proceedings (cont)                                         AR20100007481



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