IN THE CASE OF:	   

		BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20110018744 


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:

* promotion to captain (CPT) in the U.S. Army Reserve (USAR)
* reinstatement into the Army National Guard (ARNG)

2.  The applicant states:

* in 2000, the U.S. Army Human Resources Command (HRC) (then in St. Louis) informed him his college transcripts were missing
* he was instructed to send a copy for his CPT promotion in the Individual Ready Reserve (IRR); he sent the transcripts but for unknown reasons they were never received; he was honorably discharged thereafter
* in 2009, he contacted the North Carolina ARNG (NCARNG) for accession and when they requested his personnel records from St. Louis, they could find no record of him being twice passed over for promotion
* In 2011, the NCARNG informed him they received guidance from HRC that he was ineligible to access into the ARNG because he was twice passed over
* He was informed the NCARNG has vacancies for CPTs; they are short staffed at the O-3 and the O-4 grades and he hopes to fill one of those many positions

3.  The applicant provides an Officer Record Brief, college transcripts, and a statement from the NCARNG Officer Strength Manager.

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 enlisted in the Regular Army on 25 February 1991 and he held military occupational specialty 11B (Infantryman).  He completed Officer Candidate School and he was honorably discharged from active duty in the rank/grade of sergeant/E-5 on 11 June 1992 to accept appointment as a commissioned officer.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 3 months, and 17 days of creditable active service.

3.  He was appointed as a Reserve commissioned officer in the rank of second lieutenant with concurrent call to active duty as an obligated volunteer officer for 3 years and executed an oath of office on 12 June 1992.

4.  He successfully completed the Field Artillery Officer Basic Course from 22 June to 5 November 1992.  He was subsequently assigned to Service Battery, 82nd Field Artillery, Fort Polk, LA, as an ammunition platoon leader.

5.  He was promoted to first lieutenant (1LT) on 12 June 1994.  

6.  He was honorably released from active duty on 1 July 1995 after having submitted an unqualified resignation.  He was transferred to the U. S. Army Reserve Control Group (Reinforcement, or IRR).  His DD Form 214 shows he completed 3 years of creditable active service 

7.  He was considered for promotion to CPT by the November 1998 and November 1999 Reserve Component Selection Boards but he was not selected for promotion by either board.  Neither notification memorandum indicates he was not selected due to not being educationally qualified.


8.  He was ultimately discharged from the USAR on 2 March 2001 by reason of non-selection for promotion, as indicated on the Integrated Web Services maintained by HRC. 

9.  An advisory opinion was obtained on 21 August 2011 in the processing of this case.  A National Guard Bureau (NGB) official recommended the applicant's request be returned without action.  The official states:

	a.  The applicant expressed interest in accessing into the NCARNG in 2009.  However, an age waiver and two-time non-select for promotion waiver were required at the time.  Therefore, the NCARNG did not continue with the accession process.  

	b.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states in paragraph 4-30 that an officer who twice failed to be selected for promotion to the grade of CPT will be removed from an active status unless subsequently placed on a promotion list, selected for continuation, or retained under any other provision of law.

	c.  If the applicant met the requirements, the NCARNG supports his accession into the NCARNG.

10.  The applicant responded on 22 August 2012 indicating, in effect, he concurs with the advisory opinion.

11.  He submitted a copy of his college transcript that show he was admitted to New York University in September 1986 and granted a Bachelor of Arts degree on 18 May 1989.  

12.  He also submitted a memorandum from an official of the NCARNG indicating the State can use his skills/expertise. 

13.  Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and commissioned and warrant officers of the USAR.  Table 2-1 (Time in Grade Requirements for Commissioned Officers Other Than Commissioned Warrant Officers) outlines the service requirements for promotion and indicates that for promotion to CPT the minimum years of service in the lower grade was 3 years (now 2 years) and the maximum years in the lower grade was 4 years (now 5 years).

14.  Paragraph 3-19f(2) of Army Regulation 135-155 states the Commander, Human Resources Command, Office of Promotions will normally not determine that a material error existed when an administrative error was immaterial; or the officer, in exercising reasonable diligence, could have discovered and corrected the error or omission in the official personnel file; or when the officer could have taken timely corrective action such as notifying the Office of Promotions of the error and provided any relevant documentation that he or she had. 

15.  The doctrine of laches is defined by Black's Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed in the USAR and entered active duty on 12 June 1992.  He was promoted to 1LT on 12 June 1994.  He was released from active duty on 1 July 1995 and transferred to the IRR.  

2.  Based on the maximum years in the lower grade (4 years at the time), he would have been considered for promotion in 1998 and 1999.  He was considered for promotion to CPT by the 1998 and 1999 RCSBs respectively but he was not selected for promotion.  Accordingly, he was discharged from the USAR.  It is unclear why he was not selected for promotion at the time.  In the absence of evidence to the contrary, the concept of regularity applies. 

3.  The college transcripts he now provides were considered.  However, implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The applicant knew or should have known that completion of the bachelor degree and its inclusion in his record has been a long-standing regulatory requirement.  The general requirements and workings of the system are widely known and specific details, such as promotion board dates, and promotion zones are widely published in official, quasi-official, and unofficial publications, and in official communications.

4.  Each board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints.  The Secretary of the Army, in his Memorandum of Instruction, establishes limits on the number of officers to be selected.  The selection process is an extremely competitive process based on the "whole officer" concept.  It is an unavoidable fact that some officers considered for promotion will not be selected.  There are 

always more outstanding officers who are fully qualified to perform duty at the next higher grade, who are not selected because of selection capability restrictions.

5.  It is unfortunate that the applicant was not selected for promotion to CPT while he was in an active status; however, it is a well known fact that not everyone who is eligible for promotion during a given selection board is selected because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.  After all, selection for promotion is recognition of potential for service in the higher grade; it is not a reward for past service.

6.  His contention that the absence of his college transcripts may have served as the basis for his non-selection is speculative at best.  Promotion boards do not reveal the basis for selection or non-selection.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant, and the applicant did not question his nonpromotion for more than 10 years, it must be presumed that what the promotion board did was correct.

7.  Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for the board's recommendations are not known.  A non-selected officer can only conclude that a promotion selection board determined his overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

8.  As for his reinstatement into the ARNG, not only is this action not within the purview of this Board (the Board corrects records and if as a result of the correction an applicant is entitled to a certain benefit, the Board recommends the action be carried out), the applicant was never in the ARNG.  He simply applied for accession into the NCARNG and requires an age waiver as well as a promotion non-selection waiver.  

9.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  The applicant is advised that although no change is being recommended to change his record, he may contact accession officials of the NCARNG regarding any waivers.


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.




      _______ _   _______   ___
               CHAIRPExRSON
      
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)                                         AR20110018744





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ABCMR Record of Proceedings (cont)                                         AR20110018744



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