IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100009095 


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, he be reconsidered for promotion to captain by a promotion advisory board. 

2.  The applicant states:

* In March 1996 and again in May 1998 he met civilian and military education requirements for promotion to captain (bachelor degree and completion of the Armor Officer Basic Course (AOBC))
* It has come to his attention the captain promotion boards convened in 1996 and 1998 for some reason did not have access to the records demonstrating he met the criteria for promotion to captain

3.  The applicant provides:

* Undergraduate transcript (Pennsylvania State University)
* Memorandum for Record verifying AOBC graduation
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* AOBC class roster
* AOBC class grade sheet
* Promotion letter, dated 8 April 1992
* Promotion status letter, dated 1 March 1996
* Promotion status letter, dated 7 May 1998
* Four recommendation letters 


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a second lieutenant on 12 May 1989 in the U.S. Army Reserve (USAR), Armor Branch.  He graduated from the AOBC on 
29 August 1990.  He was promoted to first lieutenant on 23 May 1992.  

2.  A Notification of Promotion Status letter, dated 1 March 1996, shows the applicant was considered for promotion to captain but was not selected.  The board recommendation code is 09.   

3.  A Notification of Promotion Status letter, dated 7 May 1998, shows the applicant was considered for promotion to captain but was not selected.  The board recommendation code is 10.   

4.  On an unknown date, as a result of the applicant's second non-selection, he was discharged from the USAR.  

5.  On 24 June 2009, the applicant enlisted in the New Jersey Army National Guard in pay grade E-5 for a period of 6 years.  

6.  In support of his claim, the applicant provided two letters of recommendation for his request for federal recognition as an Army National Guard officer from a colonel and Major General in the New Jersey Army National Guard.  He also provided a letter of recommendation for reappointment as a commissioned officer from a Brigadier General in the New Jersey Army National Guard and a letter of recommendation that his commission be restored from a lieutenant colonel in the New Jersey Army National Guard.
  
7.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army Promotions, U.S. Army Human Resources Command, St. Louis, Missouri.  The opinion points out:

* The applicant was considered but not selected by the 1996, 1997 (1996F2), and 1997 Captain, Department of the Army Reserve Components selection boards
* These board were held in 1995, 1996, and 1997 calendar years
* The reasons for the non-selection for the 1996 and 1996F2 boards are unknown because board deliberations are not a matter of record; however, in the applicant's case for these two boards, he was educationally qualified
* The non-selection letters the applicant received dated 1 March 1996 and 7 May 1998 do not state he was not selected for education reasons
* The applicant was given board recommendation codes of 09 and 10 which are not for education

8.  The advisory opinion states information obtained from the database reflects the 1997 captain selection board that was held in calendar year 1997 considered the applicant, he was not selected, and this board did not see his education documents.  His board consideration file is not a matter of record but his board recommendation code for this board was 04.  The applicant did not furnish any information about this board in his application nor did he provide his non-selection notice.  Even if the applicant is awarded a special selection board (SSB), with his education documents, there is no proof he will get promoted.  The applicant did not furnish any of his officer records and when his record was accessed there were no performance documents such as officer evaluation reports.  That office recommends denial of reconsideration for promotion to captain due to timeliness.  The applicant did not exercise due diligence in seeking justice and over a decade of time has lapsed.   

9.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 18 August 2010, the applicant responded.  In summary he states he agrees that more than a decade of time has elapsed since the 1997 selection board considered his promotion but he believes the circumstances of his case are rare, if not unique, and merit further consideration.  He was a 2-year Army ROTC scholarship recipient who fulfilled all commissioning requirements and was assigned to the USAR.  He was selected for the Armor Branch at a time when the USAR was eliminating nearly all combat arms units.  He spent more than 2 years following completion of the AOBC in search of an Army Reserve unit with an appropriate slot for an Armor lieutenant.  The search was conducted on the applicant's own initiative and although he remained in close contact with his branch manager at the USAR Personnel Center, the branch manager was unable to assist him in finding a unit of assignment.

10.  The applicant states in July 1991 and August 1992, the branch manager was able to arrange for the applicant to serve two weeks of annual training at Fort Knox.  He served as relief platoon leader for active duty units assigned to the Armor Center and he completed work in an exemplary fashion.  Although he received outstanding performance appraisals written by the company commanders he served under during each annual training period, he cannot find these memoranda anywhere in his personnel file.  They are the only officer evaluation reports in existence, a circumstance that would naturally arise for any Soldier assigned to the Inactive Ready Reserve.



11.  The applicant states the efforts to find an appropriate position in the USAR were not the applicant's only attempt to serve on active drill status.  He attempted to transfer to the Pennsylvania Army National Guard in 1991.  His branch manager discouraged such a transfer on the grounds that as a scholarship recipient, he had an obligation to remain assigned to the USAR for the course of his commitment.  The branch manager assured him that an appropriate drill status position in the USAR would materialize.  It never did.

12.  The applicant states by 1996 his contact with the branch manager had become sporadic.  He was not informed by his branch manager that he was under consideration for promotion to captain, he was unaware of the decision of the 1996 promotion board, and he has no recollection of receiving the 1 March 1996 letter informing him of his first non-selection.  He points out his home of record at this time was not the address shown on the 1996 non-selection letter.  Had he been aware of his first non-selection he would have taken every appropriate step to ensure his promotion packet was in order for consideration by the second board.   

13.  The applicant contends he received the second non-select notice; however, this letter gave him no suggestion for recourse beyond joining the Retired Reserve, a step that would not change his two time non-selection status.  He became aware of the full impact of his non-select status while in the process of joining the New Jersey Army National Guard in 2009.  He chose to enlist on 
24 June 2009 despite learning he would not be able to serve as a commissioned officer.  Since joining the Army National Guard he has been strongly encouraged to pursue reinstatement as a commissioned officer because his superiors believe he would be an asset to the organization as a commissioned officer.

14.  The applicant further states he was advised to pursue the matter with the Army Board for Correction of Military Records (ABCMR) because due diligence conducted by the New Jersey Army National Guard during the enlistment process discovered the recommendation code of 04 (second time non-select, not educationally qualified) given by the 1997 board.  The code was not applicable as a reason for denying promotion in the applicant's case because as the advisory opinion noted he had the requisite civilian and military education for promotion to captain.  The advisory opinion also stated this board did not see his education documents.  He believes the use of the 04 recommendation code denying promotion on the grounds of civilian or military education by the 1997 board would merit consideration by a special selection board (SSB).  



15.  The applicant also agrees with the advisory opinion analysis that there is no proof that an SSB would approve his promotion to captain but he would also argue that there is no proof a SSB would deny his promotion to captain.  In either case, he believes his circumstances and his decision to rejoin uniformed military service as a noncommissioned officer warrant consideration.  He believes the system failed to afford a promising officer the opportunity to serve during the time he was involuntarily assigned to the Inactive Ready Reserve.  The system also failed to fully benefit from the investment the U.S. Army made in this applicant's education through its award of a scholarship.     

16.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officer) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion advisory boards/SSBs will be convened on an “as needed” basis to reconsider officers who were either improperly omitted from consideration due to administrative error, or who were non-selected for mandatory promotion as a result of material error. 

17.  Paragraph 3-19f(2) of Army Regulation 135-155 states that the Commander, Human Resources Command, Office of Promotions will normally not determine that a material error existed when an administrative error was immaterial; or the officer, in exercising reasonable diligence, could have discovered and corrected the error or omission in the Official Military Personnel File; or when the officer could have taken timely corrective action such as notifying the Office of Promotions of the error and provided any relevant documentation that he or she had. 

18.  The doctrine of laches is defined by Black's Law Dictionary, sixth
edition, as the neglect to assert a right or claim which, taken together
with lapse of time and other circumstances causing prejudice to the adverse
party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he met civilian and military education requirements for promotion to captain in 1996 and 1998 but for some reason the selection boards did not have access to the records demonstrating he met the criterion for promotion to captain.  

2.  The applicant contends the use of the board recommendation code (04) denying promotion on the grounds of civilian or military education by the 1997 


board would merit consideration by an SSB.  However, the advisory opinion states the applicant was educationally qualified for the 1995 and 1996 captain selection boards.  So, notwithstanding an incorrect board recommendation code, he would have been educationally qualified for the 1997 board.    

3.  The applicant contends he has no recollection of receiving the 1 March 1996 letter informing him of his first non-selection, that his home of record at that time was not the address shown on the 1996 non-selection letter, and that had he been aware of his first non-selection he would have taken every appropriate step to ensure his promotion packet was in order for consideration by the second board.  He stated that by 1996 his contact with his branch manager had become sporadic and he was not informed by his branch manager that he was under consideration for promotion to captain.

4.  However, officers are largely responsible for their own careers.  The applicant could have initiated more frequent contact with his branch manager.  An officer exercising due diligence about his career knows about when he is coming up for promotion consideration and is on the lookout for when that promotion board is to be held.  It is the Soldier's responsibility to notify the appropriate officials of any change in his current mailing address.   

5.  The letters of recommendation provided by the applicant were also noted.  However, the applicant has provided insufficient evidence to show his case should be seen by a promotion advisory board/SSB.  An arbitrary ruling in his favor, without knowing what his performance documents (i.e., OERs) would have shown, would cause prejudice to the Government.  Had he applied to the ABCMR in a timely manner, an equitable decision could possibly have been made in his case.  However, since it is now at least 10 years after he separated from the USAR, the doctrine of laches is invoked in his 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)                                         AR20100009095



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100009095



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1