IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110025034 


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 a personal hearing and that the following errors or injustices in his record be corrected.

* denial of the appeal of his change of rater (COR) Officer Evaluation Report (OER) for the rating period 26 March through 21 November 1990
* non-selection for promotion to lieutenant colonel (LTC) by the September 1991 board
* involuntary removal from the Army
* denial of continuation on active duty in the Active Guard Reserve (AGR) program

2.  He states the above OER is inaccurate and contains several administrative and substantive errors.  He contends:

* the period covered is inaccurate and inconsistent, there was no published rating scheme, no timely counseling, and no discussion of objectives or duties
* he received his copy of the contested OER without the rating officials signatures after he received the Relief for Cause (RFC) OER
* the OER was not processed at the Army Personnel Center (ARPERCEN) within 90 days of the thru date
* the contested OER was given to him in conjunction with the RFC OER
* there were several denials and delays 
* There was close coordination between Colonel (COL) G.O. Hxxxxxxx, Chief of Staff, 96th Army Reserve Command (ARCOM), and LTC Lxxxxx, former rater Assistant Chief of Staff, initiating and directing the completion of both OERS
* The OER contained false statements addressing his interpersonal relations with seniors and statements regarding counseling 
* All indicators pointed to COL Hxxxxxxx: he coordinated the actions to initiate his relief from active duty and he kept the process on track
* The LTC promotion board should not have seen either OER
* He had completed 50 percent (%) of the Command and General Staff College (CGSC) and with this education and both OERs removed from his file, he should have been given a relook board by law
* He was approved for continuation on active duty by the 1989 continuation board
* Had his promotion taken effect, he would have stayed in the AGR program through November 1994 and he would have retired from active duty
* His retirement points were miscalculated and he was never counseled or informed of other alternatives after a career spanning over 30 years
* He struggled with several appeals and obtaining records under the Freedom of Information Act (FOIA)

3.  The applicant provides:

* Contested OER for the period 26 March 1990 thru 21 November 1990
* RFC OER for the period 22 November 1990 thru 23 April 1991
* Letter, dated 15 May 2010, from LTC J.P. Lxxxxx (Retired) (former rater and Assistant Chief of Staff)
* Multiple memoranda, dated on various dates, Subject: Chief of Staff Issues or Concerns
* Memorandum, dated 23 September 1991, Subject: 96th Army Reserve Command (ARCOM) Rating Scheme
* DA Form 67-8-1 (OER Support Form)
* Memorandum, dated 14 April 1991, Subject: [The applicant's] RFC
* Multiple letters, dated in 1991, requesting information under FOIA
* Multiple letters responding to his FOIA requests
* Commander's Inquiry, dated 8 June 1991, regarding an OER from 22 November 1990 through 22 April 1991
* Approval by the Commanding General (CG), 96th ARCOM, of the Commander's Inquiry
* Memorandum for Record, Chief of Staff, [the applicant's] RFC
* Various memoranda of denial of OER appeal from ARPERCEN personnel 
* Bachelor of Science Degree from the University of Albany, NY
* Letters from the Office of the Inspector General (IG)

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.  None of the applicant's relevant documents, including his OERs, rebuttals, promotion non-selection memoranda, Notification of Eligibility for Retirement at Age 60 (20-year letter), or his chronological record of retirement points are filed in his Military Personnel Records Jacket or in his Official Military Personnel File (OMPF).  He provides selected supporting and/or contested documents.

3.  The applicant's records show he was born on 13 October 1942.  He turned age 60 on 13 October 2002. 

4.  Having had prior service, the applicant was appointed as a Reserve commissioned officer and executed an Oath of Office on 23 August 1975.  He completed the Infantry Officer Basic Course.

5.  He served in a variety of stateside assignments, including an assignment with the Office of the Chief, Public Affairs, Washington, DC.  He was promoted to major (MAJ) on 15 July 1984.  

6.  He was ordered to active duty in an AGR status on 29 June 1986 and he was assigned to Headquarters (HQ), 96th ARCOM, Fort Douglas, UT, as a Public Affairs Officer on or about 4 April 1988.

7.  The applicant appears to have been considered for promotion to LTC by the 1990 Reserve Components Selection Board (RCSB) that convened from 
13 to 31 August 1990 with the results released on 23 October 1990; but he was not selected.  His non-selection memorandum is not available for review with this case.



8.  He submitted two copies of a COR OER for the period 26 March 1990 thru 
21 November 1990, for duties as the "Public Affairs Officer" while assigned to HQ, 96th ARCOM.  His rater was LTC J.P. Lxxxxx, Assistant Chief of Staff, and his senior rater was COL G.O. Hxxxxxxx, Chief of Staff.  Both OERs are similar in rating and both are signed by the applicant and his rating officials.  However, one is dated by the rating officials while the second is not dated.  Additionally, the two OERs show the following entries:

	a.  In Part IV (Performance Evaluation – Professionalism), the rater placed the number 1 (1 being high degree and 5 being low degree) in all but three of the 14 competences.  The rater placed the number 2 in three competencies ("Displays Sound Judgment," "Is Adaptable to Changing Situations," and "Seeks Self Improvement.)" 

	b.  In Part Vb (Performance and Potential Evaluation), the rater placed an "X" in the "Usually Exceeded Requirements" block and in Part Vc, he entered the following comments:

[Applicant] has done an excellent job coordinating the quarterly issues of the ARCOM's Deadeye magazine during the rated period.  The issues were of high quality and were well balanced to include articles about the total ARCOM.  This was accomplished through his guidance and training of the Public Affairs Detachment and the unit public affairs personnel.  He recently completed a feasibility study on having the Deadeye magazine printed by a commercial printer from proceeds from the sale of ads rather than from government appropriated funds.  This conversion should save the government about ten thousand dollars per year.  [Applicant] has experienced some difficulty in the area of interpersonal relations with both senior ranking personnel and his peers.  We are working with him to correct this problem.  

	c.  In Part Vd, the rater placed an "X" in the "Promote With Contemporaries" block and in Part Ve, he entered the comments "Consider for higher level staff positions.  Needs to complete Command and General Staff College." 

	d.  In Part VIIa (Senior Rater), the SR placed an "X" in the third box from the top and placed an "X" in the "Yes" block to indicate that a completed DA Form 67-8-1 was received with this report and considered in the evaluation and review. He further entered in Part VIIb the comments:

During the period [the applicant] was successful in broadening the base of coverage for the Deadeye publication, ensuring that units throughout all seven states are given coverage.  [The applicant] is a project-oriented officer; he enjoys putting his complete energy towards special projects, and he has the capability and the energy to make things happen. 

9.  The OER was signed by the applicant's rater on 26 April 1991, by his senior rater on 29 April 1991, and by the applicant on 19 April 1991. 

10.  On 14 April 1991, an official (a captain) at the 96th ARCOM submitted a Memorandum for Record addressing the various scenarios associated with the applicant's RFC OER.  This individual addressed the applicant's non-selection for promotion due to failure to complete CGSC, promotion consideration by the September 1991 board, the requisition for a replacement, the possibility of a commander's inquiry and an appeal, the applicant's possible reassignment, and consideration for separation by the Department of the Army Active Duty Board.

11.  On 19 April 1991, the applicant initiated and submitted a DA Form 67-8-1, wherein he listed his rater as LTC J.P. Lxxxxx, Assistant Chief of Staff, and his senior rater was COL G.O. Hxxxxxxx, Chief of Staff.  He also listed his duty description and major contributions. 

12.  On 22 April 1991, by Memorandum for Record, the 96th ARCOM Chief of Staff outlined the events that led to the applicant's relief.  He stated that he interviewed the applicant and presented him with all the facts and circumstances surrounding the relief, specifically issues with being abrasive, using foul language, failing to respond to frequent counseling, failing to follow through with even routine assignments, and more recently ignoring repeated requests from a member of the press and treating him unprofessionally.  The Chief of Staff also informed him of his rights.

13.  On 23 April 1991, by memorandum, a chief warrant officer four stated that he was assigned to the 96th ARCOM, on 10 July 1988, and that there was no published rating scheme until approximately June or July 1991.  The publishing of a rating scheme occurred when the infighting in the 96th ARCOM Office of the Deputy Chief of Staff for Personnel and the applicant's situation occurred.  

14.  During the month of April 1991, he received an RFC OER which covered 5 months of rated time, from 22 November 1990 thru 22 April 1991 for his duties serving as "Public Affairs Officer" while assigned to HQ, 96th ARCOM.  His rater was COL G.O. Hxxxxxxx, Chief of Staff, and his senior rater was Brigadier General (BG) R.F. Rxxxxx, Deputy Commanding General.  The OER shows the following entries:
	a.  In Part IV, the rater placed the number 1 in 7 of the 14 competences.  The rater placed the number 2 in five competencies and the number 3 in the remaining two competencies.  He entered the following comments:

* [The applicant] is a very bright officer, quick to grasp new concepts and highly capable of suggesting important innovations
* Has a difficult time sustaining a team effort; assistants have become discouraged
* Ineffective in meeting the surge load of Desert Storm
* Subordinates feel put down
* Has fallen short of the positive diplomacy needed in relating to the press
* Has made improvement
* Did not meet surge demands of Desert Storm
* Missed tasking suspense
* Fallen below standards of responsibility expected of a Public Affairs Officer (PAO)

	b.  In Part Vb, the rater placed an "X" in the "Often Failed Requirements" block and in Part Vc, he entered the following comments:

On numerous occasions since his assignment to this headquarters, [the applicant] has been counseled regarding his negative attitude and failure to produce high quality responses routine to his PAO assignment.  Recently a highly respected local press representative complained of encountering an abrasive attitude and regrettably sluggish response to requests for assistance over a sustained period of time.  Giving the [the applicant] the benefit of the doubt regarding excessive workload generated by Desert Storm, this headquarters brought two officers and one enlisted person into the PAO operations on short-tours.  Nevertheless, [the applicant's] personal performance has not improved.  Consequently, it is necessary for me to direct the relief to initiate replacement action that will give the ARCOM Headquarters the effective PAO it must have.  [The applicant] has been notified of the reasons for the relief.

	c.  In Part Vd, the rater placed an "X" in the "Do Not Promote" block and in Part Ve, he entered the following comments:  "While [the applicant] is a highly capable officer who demonstrated bursts of outstanding performance, his failure to sustain a positive pattern of professional productivity causes me to question seriously his potential to serve at the level required of a Lieutenant Colonel." 

	d.  In Part VIIa, the SR placed an "X" in the fourth box from the bottom and placed an "X" in the "No" block to indicate that a completed DA Form 67-8-1 was not received with this report and considered in his evaluation and review.  He further entered in Part VIIb the following comments:

I have reviewed the circumstances of the relief and fully concur with the rater.  Because [the applicant] was relieved by the rater, a DA Form 67-8-1 was not completed.  [Applicant] exhibits periods of greatness then follows with periods of mediocrity and lack of follow-up. This inconsistent action has caused embarrassment and hardship for the command group and the command.  Public relations have shown a dramatic downturn during this period. 

15.  The OER was signed but not dated by his rater and senior rater.  The rated officer's signature block is blank.  

16.  On 8 June 1991, a COL of the 96th ARCOM conducted a commander's inquiry in response to the applicant's request.  In his memorandum, addressed to Major General (MG) D.M. Bxxxx, CG, 96th ARCOM, the COL stated he found that:

* A rating scheme had not been established and the applicant did not know who his rater was
* A DA Form 67-8-1 was not submitted and the regulation does not excuse the submission of a support form
* The OER was signed on 21 April 1991, nearly 5 months after the thru date
* Initial face-to-face counseling did not appear to have taken place
* The RFC OER was prepared 4 days before the COR OER was prepared for the previous rating period
* The rater's comments were vague
* RFC OERs must be reviewed by the officer in the chain of command senior to the senior rater; it did not appear this was done in this case
* Corrective action was recommended

17.  Subsequent to the commander's inquiry, by memorandum, MG D.M. Bxxxx, the CG, 96th ARCOM stated:

* A command rating scheme had not been updated and published
* The support form was not prepared within 30 days of the beginning period
* Goals and objectives were not established
* A review was not conducted 
* The previous COR OER was overlooked by the chain of command and not prepared until after the RFC OER
* The applicant failed to satisfactorily accomplish the full range of public affairs requirements and he alienated a member of the media

18.  The CG concluded that there were errors and possible injustice to the applicant, he could not be reassigned to the 96th ARCOM PAO position, he was performing satisfactorily in his current assignment, and he should be retained in his current position.

19.  On 20 June 1991, the applicant completed a Bachelor of Science degree and he was awarded a diploma conferring this degree.

20.  On 4 October 1991, an official at ARPERCEN, St. Louis, MO, informed the applicant that ARPERCEN approved his appeal to void the RFC OER and would remove it from his records.

21.  The applicant appears to have been considered for promotion to LTC by the 1991 RCSB that convened from 24 September to 11 October 1991 with the results released on 17 December 1991, but he was not selected.  His non-selection memorandum is not available for review with this case.  The 1991 RCSB had a mandatory removal date of 24 February 1992 for those who were non-selected for promotion twice.

22.  On 21 January 1992, by memorandum, officials at ARPERCEN, St. Louis, MO, notified the applicant that he had been identified for involuntary release from active duty after being non-selected for promotion to the next higher grade twice.

23.  On 24 January 1992, the applicant acknowledged receipt of the notice of involuntary release from active duty.  He indicated he understood he would be released from active duty no later than 120 days from receipt of the notification.

24.  On 20 February 1992, by letter, the applicant was advised of his options upon non-selection for promotion after the second consideration.  His options were to be discharged from the USAR or transfer to the Retired Reserve.  He was given 30 days to respond; however, he failed to so.  The postal stamp on the letter addressed to him was returned to sender.  It is noted that a letter alerted him to the fact that he was eligible to transfer to the Retired Reserve.  

25.  On 14 May 1992, by letter, an official at the Department of the Army IG notified the applicant that an inquiry into the applicant's allegations that he made against MG D.M. Bxxxx, the CG, 96th ARCOM, and BG R.F. Rxxxx, the Deputy CG, 96th ARCOM, that they conspired to destroy his career and discriminated against him on the basis of his religion was not substantiated.  
26.  On 23 May 1992, he was honorably released from active duty and transferred to the USAR Control Group (Individual Ready Reserve).  His 
DD Form 214 (Certificate of Release or discharge from Active Duty) shows he completed 5 years, 10 months, and 25 days of creditable active service during this period and he had 10 years, 7 months, and 15 days of prior active service. 

27.  On 1 December 1992, he was honorably discharged from the USAR.

28.  On 17 June 1993, an official at ARPERCEN, St. Louis, MO, notified the applicant that his appeal of the contested OER for the period 26 March 1990 thru 21 November 1990 was returned because he did not submit sufficient evidence.  

29.  Army Regulation (AR) 623-105 (Officer Evaluation Reporting System), effective April 1990, established the policies and procedures for the Officer Evaluation Reporting System.  In pertinent parts, this regulation stated: 

	a.  Paragraph 3-5 states that when it is brought to the attention of the commander that a report rendered by one of his or her subordinates may be illegal, unjust, or otherwise in violation of AR 623-105, he or she would look into the matter.  The commander will conduct a commander's inquiry and confine his or her inquiry to matters relating to the clarity of the report, the facts contained in the report, its compliance with the regulation, and the conduct of the rated officers and rating officials.  The commander does not have authority to direct that an evaluation be changed and he/she may not use command influence to alter an honest evaluation of an officer by a rating official. 

	b.  Paragraph 4-11c(5) states that each rating official signs and dates the report before sending it to the next rating official of HQDA.  Their signatures verify all entries on the form at the time of their respective signatures.  Paragraph 4-21d states that any verified derogatory information may be entered on an OER. While the fact that an officer is under investigation may not be mentioned in an OER until the investigation is completed, this does not preclude the rating chain’s use of verified derogatory information.

	c.  Paragraph 4-13 stated that Part IV of the DA Form 67-8 is prepared by the rater and provides instructions on the preparation of Part IVa (Professional Competence).  Specifically, the regulation requires rating on a scale of "1" to "5" (1 being high) to portray how well each statement describes the rated officer.  The regulation also states that any comments on the strengths or weaknesses will be placed in the comments part of block “b” and that comments are only mandatory to explain or clarify ratings of "4" or "5" in Part IVa.

	d.  Paragraph 4-27 states that, among other reasons, any report with ratings or comments that in the opinion of the senior rater are so derogatory that the report may have an adverse impact on the rated officer’s career will be referred to the rated officer by the senior rater for comment.  Paragraph 5-30 of AR
623-105 states that the primary purpose of the commander's inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the OER is accepted at HQDA.  However, in these after-the-fact cases this paragraph is not intended to be a substitute for the appeals process.  

	e.  Paragraphs 5-32 and 9-2 provide that an OER accepted by HQDA and included in the official record of an officer is presumed to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. 

	f.  Paragraph 8-17 states that the DA Form 67-8-1 is used only by the rated officer and the rating chain.  It is used by the rated officer to describe his principal duties, objectives, and significant contributions.  While such information should be jointly developed, it is not necessarily the view of any of the rating officials.  

	g.  Paragraph 8-18b states that non-rated periods must be accounted for on the OER.  These are periods of less than 120 calendar days which do not include attendance at an annual training (AT) period of at least 15 days and periods of less than 120 days during attachment to another organization that do not include attendance at an AT period of less than 15 days.  

	h.  Paragraph 9-7 states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

30.  AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the U.S. Army Reserve (USAR).  This 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, 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.  

	a.  in order to be qualified for promotion to LTC an individual must have completed 7 years of time in grade as a MAJ and completion of 50% of the CGSC on or before the convening date of the respective promotion board.  Any person, who fails to be selected for promotion to the rank of LTC twice, will not be considered again for promotion.  All officers not qualified for retention will be removed from an active status within a specified period after the selection board submits its results to Headquarters, Department of the Army.

	b.  Paragraph 3-19 contains guidance on promotion reconsideration boards.  It states, in pertinent part, that in order to find a material error, a determination should be made that there is a fair risk that one or more of the following circumstances was responsible:  (1)  The record erroneously reflected that an officer was ineligible for selection for educational or other reasons when in fact the officer was eligible for selection when the records were submitted to the original board for consideration; (2)  One or more of the evaluation reports seen by the board were later deleted from an officer's OMPF; (3)  One or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer's OMPF; (4)  One or more existing evaluation reports as seen by the board in an officer's OMPF were later modified; (5)  Another person's adverse document had been filed in an officer's OMPF and was seen by the board; (6)  An adverse document, required to be removed from an officer's OMPF as of the convening date of the board, was seen by the board; (7)  The Silver Star or higher award was missing from an officer's OMPF; or (8)  An officer's military or civilian educational level, including board certification level for AMEDD officers, as constituted in the officer's record (as seen by the board) was incorrect. 

	c.  Paragraph 3-19 also lists the following factors that will normally result in a material error determination:  (1) Officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses.  If eligible, this person will be considered by the next regularly scheduled selection board.  A special board will not be used when (1) an administrative error was immaterial, or (2) the officer in exercising reasonable diligence could have discovered and corrected the error or omission in the OMPF or the officer could have taken timely corrective action; and (3) letters or memoranda of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer's OMPF. 
31.  AR 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   

32.  Title 10, U.S. Code, section 14504 provides that a MAJ 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 applicant contends the errors or injustices related to the issues below should be corrected: 

* denial of his OER appeal for the 26 March 1990 thru 21 November 1990 OER
* non-selection for promotion to LTC by the September 1991 board
* involuntary removal from the Army
* denial of continuation on active duty in the AGR program

2.  The applicant’s request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by him are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  The applicant was assigned to HQ, 96th ARCOM as a public affairs officer.  He received two OERs, a COR OER for the period 26 March 1990 thru
21 November 1990 and an RFC OER for the period 22 November 1990 thru 
22 April 1991.  He was non-selected for promotion to LTC twice and he was ultimately discharged from the USAR in May 1992 after having failed to exercise his option to transfer to the Retired Reserve. 

4.  With respect to the first contested OER for the period 26 March 1990 thru 21 November 1990:

	a.  the applicant was assigned to HQ, 96th ARCOM on or about April 1988 as a PAO.  Although not available for review with this case, he must have received at least one OER between April 1988 and 26 March 1990 (the beginning date of the contested OER).  The rating scheme generally mirrors the chain of command.  The applicant was a senior MAJ who worked on the staff of HQ, 96th ARCOM.  It is highly unlikely that the absence of a command rating scheme led the applicant to not know who his rating officials were. 

	b.  the lack of counseling alone is not grounds for an appeal.  The applicant had an equal responsibility to ensure initial and quarterly counseling occurred.  After all, he was a field grade officer who had multiple OERs in the past.  He was aware or should have been aware of the counseling process mandated by the evaluation regulation.

	c.  despite the delay in the processing of this OER, this contested OER appears to be correct.  An OER is a measure an officer's performance and potential during a period of time.  There is no evidence, and the applicant provided insufficient evidence to show his rater and senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner. 

	d.  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.  The applicant did not meet the burden of proof in this case.

5.  With respect to the RFC OER, his appeal of this OER was based on a commander's inquiry that determined this OER had several inconsistencies and his rating officials did not adhere to the governing regulation.  Accordingly, this OER was removed from his records.  However, his successful appeal of this OER has no relationship to his previous contested OER as each OER stands alone. 

6.  With respect to the promotion to LTC issue:

	a.  the available evidence shows the applicant was non-selected for promotion to LTC twice.  Promotion 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.  Although the RFC OER appeal was approved after the promotion board convened, there is no evidence that it was filed in his records and seen by the promotion board that did not select him.
	b.  he did not submit any evidence to show he completed at least 50% of the required military education prior to the promotion board convening.  But even if he did, each board considers all officers eligible for promotion consideration, but 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.

	c.  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 that 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.

7.  With respect to the issue of continuation on active duty:

	a.  by law and regulation, a MAJ 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 within a specified timeframe.  

	b.  the applicant was notified of his non-selection for promotion.  He was further advised of the options he had at the time.  He was fully eligible to request a transfer to the Retired Reserve but he did not exercise his right by failing to respond to the letter that was sent by ARPERCEN.  Accordingly, he was discharged.

8.  The equitable defense of laches appropriately bars the applicant's various claims.  Laches properly applies when a party through neglect or delay fails to diligently pursue a claim.  To rely on this defense, the Government must show the applicant delayed filing a claim of error for an unreasonable and inexcusable length of time from the time the applicant knew or reasonably should have known of this claim against the Army and the delay by the applicant operated to the prejudice or injury of the Army.  The applicant failed to seek relief from his discharge in 1992 until 2011 even though he knew of the alleged errors the entire time.  Excusing a considered decision to delay filing creates a situation where the applicant receives an extraordinary windfall for a lack of diligence, one of the reasons why the equitable doctrine exists.
9.  In view of the circumstances in this case, the applicant is not entitled to any of 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)                                         AR20110025034



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110025034



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1