IN THE CASE OF:	  

		BOARD DATE:	    4 August 2011

		DOCKET NUMBER:  AR20110001111 


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 correction of his military records to show that he had never been considered for promotion to major, pay grade O-4.

2.  The applicant states he never received notice of the promotion board; and, therefore was not afforded the opportunity to meet the requirements for promotion.  He contends that in 2009, when he applied for appointment in the Texas Army National Guard, he was informed that he had been twice passed over for promotion to the rank of major while assigned in the Individual Ready Reserve (IRR).  He states this was the first he learned of his non-selection for major.

3.  The applicant provides copies of his DA Forms 67-8 (Officer Evaluation Report) for 1983-84; 1984-85; and 1987-88 (front sides only); a letter from his neighbor, dated 1 April 2009; and six affidavits dated 29 March 2009.

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 available records show the applicant's service as follows:

	a.  15 May 1981 to 13 May 1983: U.S. Army Reserve (USAR) officer not on active duty;

	b.  14 May 1983 to 13 May 1986: USAR, Chemical Corps, first lieutenant, pay grade O-2, on active duty; and

	c.  13 May 1986: transferred to the IRR due to expiration term of service.

3.  In a memorandum, dated 5 October 1989, the applicant was notified by the Chief, Office of Promotions, Reserve Components, U.S. Total Army Personnel Command, St. Louis, Missouri, of his promotion to captain, pay grade O-3, Engineer Corps, USAR.  His date of rank was indicated as 13 May 1988.

4.  In a memorandum, dated 26 May 1994, addressed to the applicant at an address in Grapevine, Texas, he was notified by the Chief, Office of Promotions, Reserve Components, of his non-selection for promotion to major due to failing to complete the required military education.

5.  In a memorandum, dated 2 June 1995, addressed to the applicant at an address in Grapevine, Texas, he was notified by the Chief, Office of Promotions, Reserve Components, of his second non-selection for promotion to major.  This letter does not indicate any reason or explanation for his non-selection.

6.  Orders D-11-598835, dated 22 November 1995, indicating the applicant with the same Grapevine, Texas address as shown in the two memoranda discussed above, discharged him effective 22 November 1995.  His characterization of service was honorable.

7.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) provides policy for selecting and promoting commissioned officers of the USAR and Army National Guard.  Promotion from captain to major requires a minimum of 4 years time in grade as a captain and completion of any officer advanced course.

8.  The legal "Doctrine of Laches" bars a claimant from receiving relief where the claimant's delay in pursuing the claim has operated to the prejudice of the opposing party.
9.  The applicant has provided a letter from his neighbor essentially stating that due to the installation of automated mail processing equipment in the early 1990's, the post office commonly experienced a problem with misspent mail, often resulting in non-delivery.

10.  The applicant also has provided six affidavits from individuals each stating that during the 1990's they had experienced frequent mail delivery problems.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show that he had never been considered for promotion to major, pay grade O-4 because he never received notification of the promotion boards.

2.  The available records clearly show that the applicant was considered twice for promotion to major and was not selected.  The first non-selection appears to have been due to his failure to complete the required military education.  No reason is given for why he was not selected the following year.

3.  The applicant's contention that he was disadvantaged because he did not receive proper notification prior to the convening of the promotion board is without merit, especially at this late date.  The applicant had been associated with the U.S. Army since 1981, making it very reasonable to presume that by 1993, he knew, or should have known, what the requirements were for promotion to major and that a promotion board would soon be convened.  He should have taken the initiative to look after his military career by inquiring about his promotion status with his branch advisor.

4.  It has been approximately 16 years since his second non-selection for promotion.  He was honorably discharged in 1995.  Available records are inadequate to confirm or deny the applicant's contention that one or both of the promotion board processes were flawed in any way.  Regrettably, due to the passage of time pertinent information has been lost or destroyed; therefore, favorable consideration of the applicant's request is barred by the doctrine of laches.

5.  In view of the foregoing, the applicant's 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)                                         AR20110001111





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ABCMR Record of Proceedings (cont)                                         AR20110001111



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