IN THE CASE OF:
BOARD DATE: 18 January 2011
DOCKET NUMBER: AR20100015233
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 the two letters of his nonselection for promotion be expunged from his official military personnel file (OMPF).
2. The applicant states he is attempting to join his local New York Air National Guard unit as a Flight Nurse. He was told that he is not eligible for re-commissioning because he was passed over for promotion twice. He transferred to the Individual Ready Reserve (IRR) after a successful tour on active duty. During this time he was passed over for promotion to Major. Further, after some delays and poor advice he tried to resign his commission prior to the next board. He was unsuccessful and another incomplete packet went before the board resulting in a second nonselection for Major. He contends that based on his prior service and 10 years of intensive care and emergency room training he is uniquely qualified to integrate into the 139th Aeromedical Evacuation Squadron as a Flight Nurse. Expunging the record of his nonselections would allow the New York National Guard to grant him a new commission.
3. The applicant provides the following:
* Department of the Army photograph, dated 8 April 1992
* U.S. Total Army Personnel Command memorandum, dated 26 July 2001
* U.S. Total Army Personnel Command memorandum, dated 16 July 2002
* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 12 September 1992
* Civilian Résumé
* DA Forms 67-8 (U.S. Officer Evaluation Reports) for the period 4 May 1989 through 24 June 1992
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 he was appointed a Reserve commissioned officer in the rank of second lieutenant (2LT)/O-2 on 18 July 1988 and entered active duty on 4 January 1989.
3. On 12 September 1992, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).
4. On 26 July 2001, he was notified that a Department of the Army Reserve Components Selection Board considered him for promotion, but he was not selected. On 16 July 2002, he was notified he failed to be selected for promotion the second time. He was further informed that because this was his second nonselection, he would be discharged from the USAR no later than 1 January 2003.
5. On 6 December 2002, the U.S. Army Reserve Personnel Command issued Orders Number D-12-247776, directing his discharge from the USAR effective 1 January 2003.
6. 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 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 applicant requests the two letters of his nonselection for promotion to be expunged from his OMPF.
2. By regulation, letters of notification announcing board results will be filed in the general administrative 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 view of the foregoing, his 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) AR20100015233
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ABCMR Record of Proceedings (cont) AR20100015233
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