IN THE CASE OF:	  

		BOARD DATE:	  20 January 2011

		DOCKET NUMBER:  AR20100019633 


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 removal of memoranda, dated 29 January 1993 and 1 March 1994, from his records that show he was non-selected for promotion to captain (CPT) twice.  

2.  The applicant states between 29 January 1993 and 8 August 1994 he was assigned to the Individual Ready Reserve (IRR).  During this period, IRR officials sent official mail to his college address instead of his home address that was listed on the DD Form 214 (Certificate of Release or Discharge from Active Duty).  He attended the Officer Basic Course and he was released from active duty on 14 March 1991.  He did not find out that he had been passed over for promotion to CPT (twice) until 2008 when he tried to reenter the Army.  He never received the non-selection correspondence; therefore, he was unable to respond to or to get information concerning issues he may have been able to resolve. 

3.  The applicant also states that despite having an outstanding officer evaluation report (OER) he was not selected for promotion.  The misrouting of his mail, coupled with an incomplete official record and poor record maintenance, not only led to his non-selection for promotion to CPT in 1990s but it also ultimately led to him being denied reappointment or reinstatement in the Army in 2008. 

4.  The applicant provides:

* Driver License
* Social Security card
* DD Form 214
* Discharge order from the U.S. Army Reserve (USAR)
* DA Form 67-8 (OER) for the period 24 October 1987 through 23 October 1988
* Promotion to first lieutenant (1LT) 
* Memoranda (two) notifications of non-selection 
* Reassignment orders
* DA Form 2-1 (Personnel Qualification Record)
* Certificate of training
* Bachelor of Arts Diploma
* Request for a moral waiver for reappointment
* Request for an age waiver for reappointment
* Religious accommodation statement
* Letter of support from a retired command sergeant major (CSM) for reappointment
* Letter of support from a retired major (MAJ) for reappointment

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.  The applicant's records show he was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant and he executed an oath of office at Kemper Military School and College, Boonville, MO, on 24 May 1986.  Paragraph 5 of his appointment memorandum states:  After acceptance of an appointment, any change in the permanent home of address of more than 
30 days duration will be reported by you to the custodian of your military personnel records. 

3.  He was assigned to the 318th Chemical Company, Birmingham, AL with the duties of a platoon leader or operations officer.


4.  He received an annual OER for the period 24 October 1987 through 
23 October 1988, while serving with the 318th Chemical Company, Birmingham, AL.  His principal duty title was operations officer.  The applicant's senior rater rated the applicant's potential in the bottom 7 out of the 32 2LTs he senior rated. 

5.  On 1 February 1989, the applicant was reassigned to the USAR Control Group (IRR).  His address was listed as a Post Office Box in Birmingham, AL.  

6.  On 21 August 1990, he was promoted to 1LT in the IRR.  The address listed on his promotion memorandum is Seattle, WA.

7.  On 20 October 1990, he entered active duty for training (ADT) and completed the Chemical Officer Basic Course.  He was honorably released from ADT to the control of USAR Control Group (Annual Training) on 14 March 1991.  The place of entry on active duty listed on his DD Form 214 is shown as Seattle, WA.

8.  On 30 August 1991, he was voluntarily reassigned from the USAR Control Group (Annual Training) to the 318thh Quartermaster Company, Birmingham, AL.  His orders listed his address as Birmingham, AL.

9.  On 17 September 1991, by certified mail to his Birmingham, AL, address, the applicant's chain of command sent him a schedule of upcoming drill dates, a request to start direct deposit (for pay), and a phone listing.  However, he did not respond.

10.  On 24 February 1992, his immediate commander initiated a request to separate him in accordance with paragraph 2-12 of Army Regulation 135-175 (Separation of Officers).  The immediate commander indicated the following:

	a.  The applicant failed to provide a current address as required by paragraph 2-12i(3)(a).  He could not be located through the address provided.  Telephonic contact with his personnel management officer at the Chemical Branch, U.S. Army Reserve Personnel Command (now known as the U.S. Army Human Resources Command or HRC), St. Louis, MO, revealed their previous attempts to correspond with the applicant had been unsuccessful.  A letter sent to him regarding scheduled drills and physical exams were returned for insufficient address.  

	b.  The applicant was previously assigned to this command.  At the time of his departure, he failed to turn in the Organizational Clothing and Individual Equipment (OCIE) in excess of $400.00.  Furthermore, he failed to respond to official correspondence related to a report of survey for the said equipment.  

	c.  His conduct was considered unbecoming of an officer.  His separation was appropriate because transferring him to the IRR was prohibited since he was a scholarship recipient.  

11.  On 15 March 1992, the Administrative Officer, Headquarters, 121st U.S. Army Reserve Command, Birmingham, AL, recommended approval of the separation.

12.  On 20 March 1992, Headquarters, U.S. Army Reserve Command, Fort McPherson, GA, published Orders 112-4 reassigning the applicant from the 318th Chemical Company to the USAR Control Group (Annual Training), effective 20 March 1992. 

13.  On 29 January 1993, by a memorandum addressed to the applicant at his Birmingham, AL address, HRC-STL notified the applicant that he was considered for promotion to CPT by the 23 November 1992 Reserve Components Selection Board (RCSB) but he was not selected.  

14.  On 1 March 1994, by memorandum also addressed to the applicant at his Birmingham, AL address, HRC-STL again notified him that he was considered for promotion to CPT by the 16 November 1993 RCSB but he was not selected.  Additionally, he was advised as a result of his second non-selection, he would be discharged in accordance with Title 10, U.S. Code, section 13504(a) and/or Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) unless he was eligible for and requested a transfer to the Retired Reserve.

15.  On 21 October 1994, he was honorably discharged from the USAR in accordance with Army Regulation 135-175 effective 8 August 1994.  The orders listed his Birmingham, AL, address.

16.  He submitted the following documents:

	a.  His current driver license with a Tacoma, WA, address, and a copy of his social security card. 

	b.  His DD Form 214 with a mailing address in Seattle, WA.  He hand-wrote the entry "Last authorized address was home of record on 14 March 1991." 

	c.  Copy of his 30 August 1991 voluntary transfer orders to the 318th Chemical Company.  He hand-wrote the entry "I did not authorize this address to be used as home of record or temporary [address] at this time.  I no longer lived there."

	d.  Certificate, dated 13 March 1991, showing completion of a chemical course.

	e.  Diploma, dated 12 May 1991, showing award of a Bachelor of Arts.

	f.  Requests for moral and age waivers, dated October 2008, in connection with his request for reappointment in the USAR.

	g.  A letter, dated 28 August 2008, from a former CSM who recommends the applicant reenter the Army.

	h.  A letter, dated 7 August 2008, from a retired MAJ who also recommends the applicant reenter the Army. 

17.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve officers.  The regulation, in effect at the time, specifies promotion from 1LT to CPT required completion of 4 years time in grade and 
6 years time in service.  Any person, who twice fails to be selected for promotion to the grade of CPT, will not be considered again for promotion.  All officers not qualified for retention will be removed from an active status within 90 days after the selection board submits its results to Headquarters, Department of the Army (HQDA).  HQDA may remove a name from a not-recommended list if the officer was not eligible for consideration because he/she was not in an active status or was in an active status in error at the time of consideration.  Promotion policy does not provide for the removal of non-selections by an RCSB except when directed by this Board.

18.  Army Regulation 135-175, in pertinent part, prescribes the policies and procedures for the discharge of Reserve officers.  This regulation specifies that an officer in the grade of 1LT, who has completed his/her statutory military service obligation, will be discharged for failure to be selected for promotion after a second consideration by a RCSB, with or without the officer's consent.  

19.  Chapter 2 of Army Regulation 135-175 provides for involuntary separations from the USAR.  Paragraph 2-2 states, while not all-inclusive, existence of one of the following or similar conditions, unless successfully rebutted, authorizes involuntary separation of an officer due to moral or professional dereliction.  Sub-paragraph 2-2i lists various reasons, among them the al neglect or failure to perform assigned duties, participate satisfactorily in required Ready Reserve training, comply with applicable directives to include but not be limited to furnish a current address of record, i.e., the officer cannot be located through the address furnished), or maintaining a permanent residence, for mailing purposes, in the United States or its territories while traveling or residing in a foreign country other than one within the jurisdiction of an overseas commander.

20.  Title 10, U.S. Code, section 14504 provides that a 1LT of the Reserve Active-Status List who has failed selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be separated not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows upon his appointment in the USAR, the applicant acknowledged he understood that after the acceptance of an appointment, any change in the permanent home address of more than 
30 days duration would be reported by him to the custodian of his military personnel records. 

2.  It appears the applicant relocated several times but failed to maintain contact information with his personnel management officer or the custodian of his records.  The fact that he listed a different address on his DD Form 214 did not waive the regulatory requirement for him to keep his mailing address current.  He failed to maintain a current address.

3.  He was non-selected for promotion to CPT twice and as such, as required by law and regulation, since he did not qualify to transfer to the Retired Reserve, he was honorably discharged in 1994.  

4.  His OER as well as his noble desire to reenter the Army are noted.  However, he has not shown an error or an injustice with respect to his non-selection for promotion to CPT twice.  Therefore, he is not entitled to the requested relief.

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)                                         AR20100019633



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ABCMR Record of Proceedings (cont)                                         AR20100019633



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