IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100027773 


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, through the Secretary of the Army (SA), reconsideration of his earlier request for:

* removal of or placement in the restricted section of his official military personnel file (OMPF) a general officer memorandum of reprimand (GOMOR), dated 2 September 2004, and allied documents
* removal of or placement in the restricted section of his OMPF the annual Officer Evaluation Report (OER) for the period 1 July 2002 through
30 June 2003 (hereafter referred to as the first contested OER)
* removal of or placement in the restricted section of his OMPF the permanent change of station (PCS) OER for the period 1 July 2003 through 8 December 2003 (hereafter referred to as the second contested OER)
* promotion to lieutenant colonel (LTC)
* reinstatement on active duty either in a Regular Army (RA) or Active Guard Reserve (AGR) status

2.  The applicant states, in effect:

* The GOMOR was not warranted and the investigation was without merit
* The chain of command ignored significant directives
* The contested OERs were substantively and procedurally flawed
* 
The contested documents are out of character for him
* He has served honorably under wartime conditions in Afghanistan

3.  In his letter to the SA, the applicant states that he has been passed over for promotion to LTC and as such, he would be forced to retire from the military in April 2011.  His 31 years of faithful service to the Nation would have ended in mainly unsubstantiated claims of an investigation that did not pay heed to motives of the females who accused him of sexual harassment and only took statements from those individuals who were completely biased against him.  The bottom line is that he loves his country and he would like to continue his service.

4.  The applicant provides:

* A letter to the SA
* Orders for the Combat Action Badge and the Combat Medical Badge
* Orders and certificate for the Army Commendation Medal
* Orders and certificate for the Meritorious Service Medal
* Recommendation for award of the Bronze Star Medal
* A Statement of Wartime Service
* Email correspondence with Brigadier General (BG) MWB
* A memorandum requesting a personal appearance before BG MWB
* Multiple DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* His contested GOMOR, rebuttal, and filing memorandum
* His complaint of reprisal to the DOD Inspector General (DODIG), allied documents, and DODIG response
* A list of individuals familiar with his case
* Multiple character reference letters and/or letters of support
* His DA Form 67-9-1 (OER Support Form)
* His contested OERs, referral memoranda, and allied documents, including a request for a commander's inquiry and email exchange
* Multiple previous and subsequent OERs
* Chief, Army Reserve and U.S. Army Reserve Command, Deputy Commanding General's guidance regarding rating schemes and OER submission within the U.S. Army Reserve (USAR)
* Self-authored chronological chain of events
* Multiple sworn statements
* Multiple assignment/reassignments orders and amendments
* His résumé
* 
Letters and email exchange with other agencies
* Department of the Army Suitability Board (DASEB) decision summary and denial memorandum
* His appointment in the U.S. Army Medical Department memorandum
* An Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)) Waiver Statement
* A counseling form
* Additional letters of support
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings, Docket Number AR20080019992, dated 16 June 2009
* 2010 and 2011 Department of Veterans Affairs Proficiency Report

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080019992 on 16 June 2009.

2.  The applicant did not submit any new evidence; however, he appealed to the SA for reconsideration.  Due to Secretarial interest, his appeal is considered new evidence and warrants consideration by the Board. 

3.  Having had prior enlisted service in the Army National Guard (ARNG), the applicant was appointed as a USAR commissioned officer in the Army Nurse Corps (ANC), in the rank/grade of second lieutenant (2LT)/O-1.  He executed an oath of office on 13 October 1986.

4.  He was promoted to 1st lieutenant (1LT)/O-2 on 12 October 1989.

5.  He served in various staff or leadership positions in various medical facilities in Ohio and he was promoted to captain (CPT)/O-3 on 13 December 1993.

6.  On 18 May 1999, the U.S. Army Reserve Personnel Command, St. Louis, MO, issued the applicant a Notification of Eligibility for Retired Pay at Age 60
(20-year letter).  On 25 June 2000, he was promoted to major (MAJ)/O-4.

7.  On 9 September 2001, he entered active duty in an AGR status and he was assigned as a Head Nurse Emergency Medical Technician (EMT) with the 914th Combat Support Hospital (CSH) at Sharonville, OH.

8.  During June 2003, the applicant received the first contested OER, an annual report which covered 12 months of rated time from 1 July 2002 through 30 June 2003 for his duties as a Head Nurse EMT with the 914th CSH.  His rater was MAJ IGG, Assistant Chief Nurse, and his senior rater was Colonel (COL) WKF, Hospital Commander.  The OER shows the following entries:

	a.  In Part IVa (Performance Evaluation - Professionalism - Values), the rater placed an "X" in the "Yes" block as appropriate; he did not mark any "No" entries.

	b.  In Part IVb (Performance Evaluation - Professionalism - Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block as appropriate; he did not mark any "No" entries.

	c.  In Part Va (Performance and Potential Evaluation), the rater placed an "X" in the "Satisfactory Performance - Promote)" block and entered the following comments in Part Vb, "[Applicant] has required assistance in prioritizing his duties and enhancing his communication.  He frequently needs the guidance, counseling, and supervision of the Commander and the Assistant Chief Nurse.  Promote with peers." 

	d.  In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Do Not Promote" block, rated him "Below Center of Mass," and entered the following comments in Part VIIc, "[Applicant] has several issues, which are not consistent with the position of a field grade officer.  He has difficulty flexing his style and behavior based on his audience, and frequently exhibits inappropriate behavior in front of the wrong audience.  [Applicant] also has difficulty focusing his efforts.  Rather that [sic] prioritizing and completing the most important/urgent tasks first, [Applicant] tries to get involved in all tasks, with inconsistent results.  In my first six months of command in this unit, [Applicant] was involved in enough negative incidents that I question his ability to provide leadership and independent, unsupervised decision-making.  Do not promote."

9.  This OER was referred to the applicant for acknowledgment and any comments he wished to make.  He acknowledged receipt and submitted a rebuttal on 5 June 2004 wherein he claimed that he was not informed, counseled, coached, or provided guidance regarding the appropriate behavior he should display.

10.  The first contested OER was signed by the rating officials and the applicant, and processed by the U.S. Army Human Resources Command, St. Louis, MO
(HRC-STL) on 11 July 2004.  This report is currently filed in the performance section of the applicant's OMPF.

11.  During December 2003, the applicant received the second contested OER, a PCS report which covered 5 months of rated time from 1 July through
8 December 2003 for his duties as a Head Nurse EMT with the same rater and senior rater.  The OER shows the following entries:

	a.  In Parts IVa and IVb, the rater placed an "X" in the "Yes" block as appropriate; he did not mark any "No" entries.

	b.  In Part IVb.3 (Performance Evaluation - Professionalism - Leader Attributes/Skills/Actions) the rater placed an "X" in the "No" block for item 1 "Communicating."

	c.  In Part Va, the rater placed an "X" in the "Other" block and entered the following comments, "During this rating period, [Applicant] continued to require frequent guidance and refocus on his duties as an AGR Nurse.  He had difficulty working as a team-member with the full-time staff and in the timely submission of very basic reports.  He often independently assumed duties not assigned to him giving them greater priority than his primary role then openly voiced frustrations to all ranks impacting upon unit morale and cohesiveness.  Even after counseling, he continued to have difficulty communicating and following the chain of command and did not always use discretion when sharing information.  In December [2003], he reported to the commander that he was aware of pornographic material being viewed at the Reserve Center but did not timely report it and did not counsel or take corrective action with the Soldier involved.  He was counseled by the commander for the lack of leadership expected of a field grade officer with greater than twenty years of service.  In December [2003], he was administratively transferred to another unit pending a sexual harassment investigation.  [Applicant's] difficulty with communication has reflected poorly upon the unit and violated the trust of the Command Staff.  Overall, he does not exhibit the level of performance expected of a field grade officer.  Do not promote."

	d.  In Part VIIa, the Senior Rater placed an "X" in the "Other" block, rated him "Below Center of Mass," and entered the following comments:  "[Applicant] continues to exhibit an inability to work at the field grade officer level.  He has been involved in behavior which reflects poorly on his superior officers and wrongly tarnished the reputation of his local commander.  His inappropriate behavior has resulted in several unit morale issues, and he was found to be in violation of the Army's sexual harassment policies by an independent 15-6 [sic] (Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers)) investigation.  Regardless of his background or skills as an Army 

Nurse, he is not meeting the responsibilities of a full time unit ARG [sic] Soldier, and I feel the Army would be best served by his removal from the AGR program."

12.  This OER was also referred to the applicant for acknowledgment and any comments he wished to make.  He acknowledged receipt and submitted a rebuttal on 5 June 2004 wherein he again complained of the lack of counseling or guidance and that the unit morale issues were a result of the poor command climate not his sexual harassment issues.

13.  The second contested OER was signed by the rating officials and the applicant, and processed by HRC-STL on 11 July 2004.  This report is currently filed in the performance section of the applicant's OMPF.

14.  On 10 July 2004, subsequent to an Army Regulation 15-6 investigation, the applicant was reprimanded by the CG, 88th Regional Readiness Command, Fort Snelling, MN, for engaging in a pattern of sexually suggestive conduct directed towards CPT KSB by both verbal and email communications.  The GOMOR stated that his suggestive behavior made CPT KSB highly uncomfortable and made her reluctant to return to the unit following mobilization.  Additionally, he engaged in similar, unprovoked sexual conduct toward sergeant (SGT) TAS.  In addition, on several occasions, he appeared to purposely cause uninvited physical contact of a sexual nature between himself and SGT TAS by rubbing against her in the copier room of his workplace despite her clear indications that this action made her uncomfortable.  His sexually suggestive physical contact and comments caused SGT TAS such distress that she requested to be moved to another location.  Finally, during his tenure at the 914th CSH, he engaged in a social relationship with a male subordinate noncommissioned officer (NCO),
SGT RG, on terms of military equality in violation of the Army's longstanding prohibition against fraternization.  Specifically, he went out to dinner and to a strip club with his wife and the SGT.

15.  On 29 July 2004, the applicant acknowledged receipt of the GOMOR and he submitted a rebuttal.  With his rebuttal, he submitted multiple letters of support and/or character reference letters from various military and/or civilian members who attested to his professionalism, commitment, and selfless service.  In his rebuttal, he stated:

* He never intended on harassing SGT TAS and wanted to apologize to her
* CPT KSB had previously confided in him when she was distressed or faced with personal problems and he only intended to relieve her from the stress
* He and his wife went to a strip club but they never invited SGT RG to join them
16.  On 2 September 2004, consistent with the chain of command's recommendations, and after careful consideration of the case, the CG ordered the GOMOR be filed in the applicant's OMPF.

17.  He was honorably released from active duty on 10 December 2004 at the completion of required active service.  The DD Form 214 he was issued shows he completed 3 years, 3 months, and 2 days of creditable active service.

18.  On 11 December 2004, he was appointed as a MAJ in the Kentucky Army National Guard (KYARNG).  He executed an oath of office on the same date.  He was assigned to the Medical Command, KYARNG, Lexington, KY. 

19.  In October 2004, the applicant filed a complaint with the DODIG, stating reprisals in the form of two referred Ors and negative counseling statements were taken against him.  On 1 June 2005, the DODIG responded by informing him that during a preliminary inquiry of his allegations they reviewed documentation provide by him as well as documentation from other sources.  The DODIG determined his allegations of reprisal did not warrant an investigation for the following reasons:

	a.  They determined the flagging action was not lifted based on the findings of two Army Regulation 15-6 investigations substantiating his misconduct.  Further the flag was maintained to document the command's intent to remove him from the AGR program after his initial tour due to misconduct; and

	b.  They found the ratings on his OER for the period 1 June 2002 to 30 June 2003 and 1 July to 8 December 2003 reflected his documented substandard performance during each of the rating periods.

20.  On 27 November 2006, he was ordered to active duty.  He subsequently served Afghanistan from as an Embedded Trainer Team Member to the Afghan National Army.

21.  While in Afghanistan, on 3 August 2006, by memorandum, HRC-STL notified the applicant that he had been considered for promotion to LTC by the 2 May 2005 Reserve Component Selection Board (RCSB), but he was not selected. 

22.  He was honorably released from active duty on 16 November 2006.  His
DD Form 214 for this period of service shows he completed 1 year, 4 months, and 8 days of creditable active service.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of this DD Form 214 shows the:

* Meritorious Service Medal
* Army Commendation Medal
* Army Achievement Medal
* Army Reserve Components Achievement Medal (6th Award)
* National Defense Service Medal
* Afghanistan Campaign Medal
* Global War on Terrorism Service Medal
* NCO Professional Development Ribbon with Numeral 2
* Army Service Ribbon
* Armed Forces Reserve Medal (2nd Award)
* Overseas Service Ribbon
* Armed Forces Reserve Medal with "M" Device
* Combat Medical Badge
* Combat Action Badge

23.  On 27 November 2006, he again entered active duty in support of OEF.  He was assigned to the 75th Troop Command, Fort Stewart, GA, and further attached to the 41st Brigade Combat Team, Portland, OR.

24.  On 24 July 2007, by memorandum, HRC-STL notified the applicant that he had been considered for promotion to LTC by the 7 May 2007 RCSB, but he was not selected.

25.  On 6 February 2008, the DASEB voted unanimously to deny his petition to transfer the GOMOR to the restricted section of his OMPF

26.  On 1 April 2008, by memorandum, Headquarters, KYARNG notified the applicant that by regulation, an officer who is considered for retention and fails to be selected would be separated.  He had been considered, but not recommended for retention and, as such, he would be separated from the ARNG by 31 May 2008 and either:

* Transferred to the Retired Reserve, upon request; or
* Transferred to the USAR Control Group (Reinforcement)

27.  His selection and subsequent action by the ARNG regarding this separation is not available for review with this case.  It is unclear if he was separated from the ARNG on 31 May 2008 as indicated in the 1 April 2008 KYARNG memorandum.  However, it appears that he was allowed to remain in an active status.

28.  On 10 February 2009, he was honorably released from active duty and he was transferred to the Medical Detachment, KYARNG, Lexington, KY. 
29.  On 16 June 2009, the Army Board for Correction of Military records denied his petition for removal of the GOMOR and contested OERs from his OMPF, promotion to LTC, and/or reinstatement into the RA or AGR.

30.  On 6 August 2009, by memorandum, the Joint Forces Headquarters, KYARNG, notified the applicant that he was considered for promotion to LTC by the 5 May 2009 RCSB, but he was not selected.  Additionally, he was now considered a two-time non-select; however, he was granted selective 
continuation (SELCON) which would allow him to continue to serve in the ARNG for 3 years from the date the SELCON list was released or until he reached
24 years of commissioned service, whichever comes first.  His anticipated separation date was established as 13 October 2010 (the date he would reach 24 years of commissioned service).

31.  The subsequent action by the KYARNG regarding this separation is not available for review with this case.  It is unclear if he was separated from the ARNG on 13 October 2010 as indicated in the 6 August 2009 KYARNG memorandum.

32.  On 13 May 2010, he voluntarily requested and he was transferred from the KYARNG to the California ARNG (CAARNG).  He was assigned to the Medical Company, 297th Area Support Medical Company (ASMC).  

33.  On 25 October 2010, by memorandum, Headquarters, CAARNG notified the applicant that he had been non-selected yet another time by the Department of the Army mandatory RCSB that convened on 13 April 2010 and that action would be taken by this Headquarters to separate him on 30 April 2011.  Accordingly, on 3 November 2010, the CAARNG published Orders 307-1340 honorably separating the applicant from the ARNG and transferring him to the Retired Reserve in the rank of MAJ, effective 30 April 2011.

34.  Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.

35.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

36.  Army Regulation 623-105, in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System and Officer Evaluation Reporting System.  It also provided guidance regarding redress programs including commander inquiries and appeals. 

37.  Army Regulation 623-105, paragraph 3-57, provided the basic rule applicable to modifications of previously-submitted reports.  It stated that an evaluation report accepted by Headquarters, Department of the Army (DA), and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also stated that requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored.  Exceptions are only authorized when information that was unknown or unverified when the report was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.

38.  Army Regulation 623-105, chapter 6, contained the policies and procedures pertaining to managing the OER redress program.  Section III contained guidance on OER appeals and paragraph 6-10 outlined the burden of proof that must be met to support a successful OER appeal.  Paragraph 6-6 states, in pertinent part, that an evaluation report accepted by DA and included in the official record of an officer is presumed to be administratively correct; have been prepared by the properly designated rating officials; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

39.  Army Regulation 623-105, paragraph 6-10, contained guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It stated that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-6 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

40.  Army Regulation 135-155 (ARNG and USAR Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

41.  Army Regulation 15-185 (ABCMR) provides DA policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. The ABCMR members will review all applications that are properly before them to determine the existence of error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; and recommend a hearing when appropriate in the interest of justice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

42.  Title 10, U.S. Code, section 14506 (Effect of failure of selection for promotion:  Reserve MAJs of the Army) states, unless retained as provided in section 12646, 12686, 14701, or 14702 of this title, each Reserve officer of the Army who holds the grade of MAJ who has failed of selection 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, if not earlier removed from the reserve active-status list, be removed from that list in accordance with section 14513 of this title on the later of the first day of the month after the month in which the officer completes 20 years of commissioned service, or 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.

43.  Title 10, U.S. Code, section 14701(a)(3) (Removal from the Reserve active-status list for years of service:  Reserve MAJs) states a Reserve officer who holds the grade of MAJ and who is subject to separation under section 14513 of this title may not be continued on the reserve active-status list under this 
subsection for a period which extends beyond the last day of the month in which the officer completes 24 years of commissioned service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests through the SA the:

* removal of or placement in the restricted section of his OMPF a GOMOR and two referred OERs
* promotion to LTC
* reinstatement on active duty either in an RA or AGR status

2.  With respect to the GOMOR, the evidence of record shows the applicant received a GOMOR in July 2004 subsequent to an Army Regulation 15-6 investigation for engaging in a pattern of sexually suggestive conduct and/or contact with other Soldiers and fraternization.  He was provided with an opportunity to submit matters in his own behalf and he did so.  After consideration of the matters submitted by the applicant, the appropriate authority directed the GOMOR be filed in the performance section of his OMPF.  There is no evidence the GOMOR was administered in error, unjustly, or otherwise flawed.  Therefore, there is insufficient evidence to grant this portion of his request.

3.  The quality of service of a Soldier is adversely affected by conduct that is of a nature to bring discredit on the Army or prejudicial to good order and discipline.  The Board is generally reluctant to remove adverse information from an OMPF when it places the applicant on a par with others with no blemishes for promotions, assignments, and other favorable actions.  In this case, the applicant's GOMOR does not seem to have served its purpose nor has the applicant demonstrated it is untrue or unjust.  In view of the foregoing, he is not entitled to the requested relief.

4.  With respect to the contested OERs, there is no evidence, and the applicant did not provide sufficient evidence to show that his raters and senior raters did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  By regulation, to support removal, transfer, or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature. 

5.  The applicant's awards, decorations, and combat experience are noted.  However, the applicant’s arguments provided in this case and his appeal to the SA address his dissatisfaction with the ratings and the impact the contested reports may have had on his promotion to LTC and/or retention; but he failed to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.

6.  Based on the applicable regulations, both contested OERs are correct as constituted and the applicant has failed to meet the burden of proof to justify removing or transferring to the restricted section of his OMPF either of the contested OERs.  Therefore, there is no basis for granting this portion of his request.

7.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

8.  With respect to his promotion to LTC, in the absence of a material error, the appropriate forum for such action is a centralized promotion board by the appropriate component/proponent.  He was considered for promotion to LTC on multiple occasions, but he was not selected. 

9.  Had there been a material error, an SSB may be warranted.  In order for reconsideration of his promotion file by an SSB, the regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The applicant failed to show there was a material error that would warrant consideration of his file by an SSB.  Since the GOMOR and OERs were not improper, there is no basis to grant him an SSB.

10.  With respect to his reinstatement to RA or AGR status, the applicant was commissioned on 13 October 1986.  As a MAJ, by law, he could not serve more 
than 24 years of commissioned service and he would have been required to be 

separated in October 2010.  However, he was given yet another chance for promotion, but he was not selected.  He was ultimately transferred to the Retired Reserve in April 2011.  Therefore, there is no basis for granting this portion of his request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080019992, dated 16 June 2009.



      ____________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)                                         AR20100027773



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ABCMR Record of Proceedings (cont)                                         AR20100027773



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