IN THE CASE OF:	  

		BOARD DATE:  26 September 2013

		DOCKET NUMBER:  AR20130014468 


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 memorandum notifying him of his consideration but non-selection for promotion, dated 30 October 2003, be removed from his Army Military Human Resource Record (AMHRR).  Additionally, he requests, in effect, promotion reconsideration by a Special Selection Board (SSB) for promotion consideration under the 2003 Army Medical Department (AMEDD) Colonel (COL) Selection Board criteria.

2.  He states the existence of this non-selection letter in his file has limited his ability to serve on U.S. Army Human Resources Command (HRC) boards and may be impacting on his selection for other duties and promotions.  He adds that he has also suffered the loss of 1 year or more date of rank that he would have had if this injustice had not occurred.  He continues by explaining that at the time the 2003 AMEDD COL Selection Board met, 21 out of 72 documents were missing from his HRC record.  

3.  He provides a:

* self-authored statement
* supporting statement
* Chronological Statement of Retirement Points, dated 14 August 2013
* memorandum, subject:  Notification of Promotion Status, dated
30 October 2003
* memorandum, subject:  Promotion as a Reserve Commissioned Officer of the Army, dated 25 August 1999

* memorandum, subject:  Notification of Promotion Status, dated 
13 January 2005

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 requests promotion reconsideration by an SSB for promotion consideration under the 2003 AMEDD COL Selection Board criteria.  Army Regulation 15-185 (ABCMR), states the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.  Therefore, prior to requesting an SSB because of missing documents in his AMHRR, he must request an SSB through HRC.  Since there is no evidence he exhausted his administrative remedies, his request for an SSB will not be discussed any further in these Proceedings.  

3.  On 23 May 1983, the applicant was appointed as a Reserve commissioned officer in the grade of second lieutenant.  He is currently serving as a COL in the U.S. Army Reserve with a date of rank of 17 February 2005.

4.  In a memorandum, subject:  Notification of Promotion Status, dated
30 October 2003, the Chief, Office of Promotions Reserve Components, notified the applicant of his consideration but non-selection for promotion to COL by the Army Reserve Components Selection Board that convened on 28 May 2003.  This document is filed in his AMHRR.

5.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides that all personnel information recorded under the authority of this regulation is the property of the United States Government.

	a.  Once recorded, it will not be removed except as provided by law or this regulation.

	b.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from, or moved to, another part of the AMHRR unless directed by one or more of the following:

* ABCMR
* Department of the Army Suitability Evaluation Board (DASEB)
* Chief, Appeals and Corrections Branch, HRC
* AMHRR custodian when documents have been improperly filed
* Commander, HRC: ATTN: HRC-PDO-PO, as an approved policy change to this regulation
* Chief, Appeals Branch, National Guard Personnel Center

	c.  Documents designated for transfer from the performance or service section of the AMHRR will be moved to the restricted section, if authorized.  When discovered by the custodian or requested by the Soldier concerned, transfer restricted documents mistakenly filed in the performance or service section to the restricted section.

	d.  Appendix B of this regulation states that letters of notification to officers considered for promotion but not selected will be filed in the service section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was considered but not selected by the Army Reserve Components Selection Board for promotion to COL that convened on 28 May 2003.  Additionally, in accordance with Army Regulation 600-8-104, as cited above, non-selection letters will be filed in the service section of the AMHRR.  Therefore, the memorandum is properly filed and there is no error or injustice.

2.  However, the evidence of record shows he was later promoted to COL with a date of rank of 17 February 2005.  Since he has been promoted to COL, there is no harm in transferring the memorandum of non-selection to the restricted section of his AMHRR.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the memorandum, subject:  Notification of Promotion Status, dated 30 October 2003 to the restricted section of his AMHRR.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the non-selection memorandum.  



      _______ _  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)                                         AR20130014468





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130014468



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1