IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100013069 


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, his discharge date be corrected to show 
30 November 1990 and his twice nonselection for promotion to Major be expunged from his record.

2.  The applicant states he requested a complete resignation/break in service in order to work in Uzbekistan.  He believed he had been discharged from the Indiana Army National Guard (INARNG) on 30 November 1990.  Subsequently, in 2006, he requested to be re-commissioned.  He inquired about his date of rank in 2008 and it was then that he discovered he had been passed over for promotion to Major in 1994 and 1995, during the time he was living in Uzbekistan.
 
3.  The applicant provides a letter of support from his commander and his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

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.  After having had over 7 years of prior service, the applicant was appointed in the INARNG, Armor Branch, as a captain, effective 10 September 1988.

3.  On 25 August 1990, he requested resignation with an effective date of
1 December 1990.  The record is void of an approval or disapproval document.

4.  Military Department of Indiana, The Adjutant General of Indiana, Orders Number 227-201, dated 27 November 1990, assigned him to the USAR Control Group (Reinforcement) effective 1 December 1990.

5.  On 25 July 2007, he was reappointed in the ARNG, as a captain.

6.  On 30 September 2010, Joint Force Headquarters, Indiana, Orders Number 273-1026, revoked his orders transferring him to the USAR Control Group (Reinforcement).

7.  Joint Force Headquarters - Indiana, Orders Number 273-1028, dated 
30 September 2010, discharged him from the Army National Guard and Reserve of the Army effective 30 November 1990.

8.  On 4 October 2010, he was issued an NGB 22A (Correction to NGB Form 22) which shows item 9 (Command to which Transferred) should read "NA" and item 23 (Authority and Reason) should read "NGR 635-100 Resignation."

9.  A review of his official military personnel file (OMPF) does not contain any documentation related to his consideration or nonselection for Major.

10.  The applicant provided a letter of support from his Regiment commander requesting favorable consideration of the applicant's request.  He further states the applicant's two time nonselection for Major was due to administrative errors and miscommunications.  The commander believes the applicant is an outstanding officer with much potential.

11.  In connection with the processing of this case, an advisory opinion was received from NGB recommending approval of the applicant's request to have his twice non-select Major board results expunged from his records and his discharge orders amended to reflect an effective date of 30 November 1990.  The opinion states the applicant was considered and not selected for promotion to Major by the 1993 and 1994 Reserve Components Selection Board (RCSB).  Further, an email from INARNG states "If [the applicant] had been separated appropriately [the applicant] would not have been in the IRR when considered for promotion under the Reserve Officer Personnel Management Act (ROPMA)."

12.  On 6 October 2010, the advisory opinion was forwarded to the applicant for acknowledgement/rebuttal.  No response was received.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes that an officer’s name may be removed from a non-recommended list if he or she was not in an active status, or in an active status in error at the time of consideration.  Promotion policy does not provide for the removal of nonselections by an RCSB except when directed by this Board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, his discharge date be corrected to show 
30 November 1990 and his twice nonselection for promotion to Major be expunged from his record.

2.  The evidence confirms he requested resignation from the Army National Guard on 25 August 1990; however, he was erroneously transferred to the USAR Control Group on 30 November 1990.  The error was corrected by the Indiana Army National Guard on 30 September 2010 to show he was honorably discharged.  He was twice not selected for promotion to Major during this period due to this administrative error.  Therefore, he is entitled to have his record corrected.

3.  In view of the above, he should be granted partial relief.

BOARD VOTE:

__X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army Records of the individual concerned be corrected by:

	a.  showing his November 1990 orders transferring him to the USAR Control Group were revoked in a timely manner and the orders discharging him from the Army National Guard and Reserve of the Army effective 30 November 1990 were issued in a timely manner;

	b.  showing that as a result of the above correction his non-selections to Major were void; and

	c.  expunging from his records all documents related to his consideration and non-selection to Major.




      __________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)                                         AR20100013069





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ABCMR Record of Proceedings (cont)                                         AR20100013069



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