IN THE CASE OF

		BOARD DATE:	  28 May 2014

		DOCKET NUMBER:  AR20130021461 


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, in effect, retroactive promotion consideration for major by a Special Selection Board (SSB) under the 2002 criteria.

2.  The applicant states:

* unfavorable information was placed in his Army Military Human Resource Record (AMHRR) in 1993 without his knowledge
* he discovered the unfavorable information in his AMHRR in the summer of 2010
* in November 2010, he petitioned the Department of the Army Suitability Evaluation Board (DASEB)
* the DASEB immediately removed the unfavorable information and granted him SSB promotion consideration for the 2009 Lieutenant Colonel (LTC) Selection Board 
* he was retroactively promoted to LTC effective 1 October 2009
* he believes he was passed over for promotion to major in 2002 due to the unfavorable information
* he has been working for over 1 year trying to get SSB promotion consideration to major by the 2002 Major Selection Board
* he believed that when the unfavorable information was removed from his AMHRR by the DASEB, the effective date of removal would have been the date it was put in his AMHRR in 1993
* he recently discovered the U.S. Army Human Resources Command (HRC) has lost all physical and electronic copies of his 2002 board file

3.  The applicant provides:

* HRC Memorandum, dated 10 July 2010, subject:  Selective Continuation [Applicant]
* Orders Number 227-011, issued by HRC, dated 15 August 2011
* Orders Number 129-001, issued by HRC, dated 8 May 2012
* DASEB decisional documents

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.  After having had prior enlisted service in the Florida Army National Guard (FLARNG), the applicant was appointed as a Reserve commissioned officer of the Army on 2 May 1988.

3.  On 29 November 1988, he was appointed in the FLARNG in the rank of second lieutenant (2LT).

4.  On 17 October 1989, the U.S. Army Reserve (USAR) Personnel Center published orders ordering him to active duty as an obligated volunteer officer for 5 years.  

5.  On 24 November 1989, he was discharged from the ARNG.

6.  On 27 November 1989, he entered active duty from the USAR.

7.  On 1 May 1991, he was promoted to first lieutenant (1LT).

8.  In March 1993, the applicant received a reprimand for committing adultery.  His reprimand was imposed as an administrative measure and not as punishment under Article 15, Uniform Code of Military Justice (UCMJ).  The imposing authority directed that the reprimand be filed in his Military Personnel Records Jacket (MPRJ).

9.  On 1 June 1993, he was honorably released from active duty.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 6 months, and 5 days of active service.  His rank is listed as 1LT and he was transferred to the USAR Control Group (Reinforcement).  

10.  On 9 July 1993, the U.S. Total Army Personnel Command, Alexandria, VA published Orders 105-031 promoting him to CPT with an effective date and date of rank (DOR) of 1 August 1993.  The available records do not show if his promotion orders were revoked because he was no longer on active duty, but they apparently were revoked.

11.  The applicant was considered for promotion to CPT by the Reserve Component Selection Board (RCSB) that adjourned on 17 December 1993.  He was selected for promotion to CPT.

12.  On 22 February 1994, the USAR Personnel Center, St. Louis, MO, published Orders C-02-407002, assigning him to the 7th Field Artillery Battalion, effective 22 February 1994.  

13.  On 1 March 1994, he was reappointed in the FLARNG as a commissioned officer in the rank of 1LT.  

14.  On 18 July 1994, the USAR Personnel Command, St. Louis, MO, issued him an "Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty" memorandum advising him he had been selected for promotion to CPT in the USAR and his promotion eligibility date would be the later of 30 April 1995, the date Federal recognition was granted in the higher grade, or the date following Federal recognition being terminated in the current Reserve grade.

15.  On 15 August 1994, Headquarters, 81st USAR Command, East Point, GA, published Orders 078-013 reassigning him to the USAR Control Group (Reinforcement) effective 3 August 1994 as an "Individual Ready Reserve (IRR) No Show."  

16.  On 7 February 1995, he declined his promotion and his declination was approved through 2 April 1996. 

17.  On 3 November 1995, the NGB published Orders 136 AR extending him Federal recognition for promotion to CPT with an effective date and DOR of 3 November 1995.
18.  On 7 November 1995, the FLARNG published Orders P311-006 promoting him from 1LT to CPT effective 3 November 1995.  The orders stated the applicant had been selected for promotion to CPT by the Department of the Army Reserve Selection Board that adjourned on 17 December 1993 and he was currently serving under a declination.  

19.  On 21 September 1999, he was separated from the FLARNG.  Accordingly, the NGB published orders withdrawing Federal recognition from the applicant and transferring him to the USAR effective 21 September 1999.

20.  It appears he entered active duty on 22 September 1999.  On 6 January 2000, the U.S. Total Army Personnel Command, Alexandria, VA, published Orders 006-003 announcing his active DOR as 3 November 1995. 

21.  He was eligible for promotion consideration to major during the May 2002 Reserve Component Selection Board.

22.  He was promoted to major on 1 October 2003.

23.  On 4 November 2010, the DASEB granted the applicant relief by removing the reprimand and allied documents from his AMHRR.  The DASEB also determined promotion reconsideration was justified beginning with the 2009 LTC promotion board and, if not selected, reconsideration in 2010.

24.  He was promoted to LTC on 1 September 2011 with an adjusted DOR of 1 October 2009.

25.  On 11 March 2014, the ABCMR denied the applicant's request for adjustment of his DOR to CPT in the FLARNG from 3 November 1995 to 1 August 1993.

26.  An advisory opinion was obtained from the Chief, Officer Promotions, HRC, on 19 February 2014 in the processing of this case.  The advisory official recommended disapproval of the applicant's request.  He stated: 

	a.  The DASEB did not excuse or exonerate the applicant of his actions, behavior or conditions that produced the reprimand which was inadvertently filed in his AMHRR.

   b.  It is difficult to understand how or why it took over 15 years to discover and rebut the error or the DASEB's decision to grant an SSB contrary to the Department of Defense Instruction 1320.11 (Special Selection Boards) or that of Army Regulation 600-8-29 (Officer Promotions), chapter 7-3b, which lists cases not considered and includes, "the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brief or AMHRR."

27.  The applicant was provided a copy of the advisory opinion for his review and comment, but he did not respond within the requested timeline.

28.  Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.  Chapter 7 states an SSB may be convened under Title 10, U.S. Code, section 268 (10 USC 628) to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following:  
   
   a.  an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error (SSB required).
   
   b.  the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); and/or 

   c.  the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

29.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve officers.  Chapter 2 provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to captain to lieutenant colonel.  In order to be qualified for promotion to major, an individual must have completed 7 years time in grade as a captain.

30.  Army Regulation 135-155 also specifies that an officer is promoted after selection, if all qualifications are met.  An officer selected by a mandatory promotion board will have a promotion effective date and date of rank no earlier than the date of approval of the mandatory board by which recommended.  

31.  Army Regulation 600-37 (Unfavorable Information) states that the authority to issue and direct the filing of letters of reprimand, admonition, and censure in the MPRJ of commissioned officers and warrant officers is restricted to the recipient’s immediate commander or a higher commander in his or her chain of command.  A letter designated for filing in the MPRJ may only be filed for a period not to exceed 3 years or until reassignment of the recipient to another general court-martial jurisdiction, whichever is sooner.  Such a letter will state the length of time it is to remain in the MPRJ.  A letter, regardless of the issuing authority, may be filed in the AMHRR kept by the military personnel center only upon the order of a general officer having general court-martial jurisdiction over the individual.  Letters filed in the AMHRR will be filed in the performance section.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was not aware that unfavorable information was filed in his AMHRR in 1993 and that he discovered this error in 2010.  He further contends this unfavorable information caused him to be passed over for promotion to major in 2002.

2.  In November 2010, the DASEB removed the unfavorable information and directed an SSB only for 2009 and, if not promoted, an SSB for 2010.

3.  Officers are largely responsible for their own careers.  An officer exercising due diligence knows when he or she is coming up for promotion consideration and is on the lookout for when that promotion board is to be held.  As such, the applicant did not exercise reasonable diligence in discovering the erroneously filed reprimand.  

4.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit sufficient evidence that would satisfy this requirement.  The presence of the reprimand in 2002 is not a material error that warrants an SSB.  Therefore, he is not entitled to 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)                                         AR20130021461



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ABCMR Record of Proceedings (cont)                                         AR20130021461



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