IN THE CASE OF:  

		BOARD DATE:  14 July 2015

		DOCKET NUMBER:  AR20140017746 


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 removal of the following documents from his official military personnel file (OMPF).

	a.  U.S. Army Human Resources Command (HRC), letter, subject:  Notification of Promotion Status, dated 28 June 2005; and

   b.  HRC letter, subject:  Notification of Promotion Status, dated 30 June 2006.

2.  The applicant states:

	a.  His military service obligation (MSO) should have ended on 9 September 2002, instead of 1 November 2006.

	b.  He was passed over for promotion in 2005 and 2006 and thus became a two-time non-selectee which is preventing him from entering the Mississippi Army National Guard (MSARNG).  The letters were sent to incorrect mailing addresses.

	c.  He requests the two promotion non select letters be removed from his OMPF because he should not have been boarded for promotion.  He should have been released from the Individual Ready Reserve (IRR) upon completion of his MSO in 2002.


	d.  He has interviewed for a position with the 2nd Battalion, 20th Special Forces Group (SFG) and for Special Forces Assessment and Selection (SFAS), but he is ineligible until the promotion non select letters are removed from his OMPF. 

3.  The applicant provides copies of his–

* DA Form 71 (Oath of Office - Military Personnel), dated 9 September 1994
* rèsumè
* list of references 
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* Officer Record Brief, dated 9 November 1998
* 18 June 2005 HRC letter, subject:  Notification of Promotion Status
* 30 June 2006 HRC letter, subject:  Notification of Promotion Status
* Joint Force Headquarters, MSARNG Recruiting and Retention Battalion memorandum:  subject:  Explanation of Two Time Non-Select 
* Joint Force Headquarters Mississippi National Guard memorandum, subject:  Evaluation Potential for Federal Recognition
* Privacy Act Release for Congressional assistance, dated 16 January 2014
* letter of recommendation from Lieutenant Colonel (LTC) R_____ A. R_____, Jr.

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 U.S. Army Reserve (USAR) for 8 years as a Reserve Officer Training Corps Cadet on 21 February 1990.

3.  He was appointed a Reserve commissioned officer in the rank of second lieutenant effective 9 September 1994.  He accepted his appointment the same day and within his appointment letter it states, "This appointment is for an indefinite term."  In addition, it states that "any changes in your permanent home address of more than 30 days duration will be reported by you to the custodian of your military personnel records."  The applicant's appointment letter is filed in his OMPF.

4.  He was ordered to active duty effective 5 November 1994 for a period of 4 years.

5.  He was promoted to captain (CPT) effective 30 September 1998.

6.  Orders 229-0013, Headquarters, 25th Infantry Division, Schofield Barracks, Hawaii, dated 17 August 1998, show he was released from active duty (REFRAD) on 31 December 1998 and assigned to the USAR Control Group (Reinforcement).

7.  The applicant was REFRAD on 31 December 1998 as a CPT.  He had completed 4 years, 1 month, and 26 days of active duty service.  His DD Form 214 shows he was transferred to the USAR Control Group (Reinforcement).

8.  HRC memorandum, subject:  Notification of Promotion Status, dated 28 June 2005, notified the applicant he was not selected for promotion to major by the Army Reserve Components Mandatory Selection Board.  

9.  HRC letter, subject:  Notification of Promotion Status, dated 30 June 2006, notified the applicant he was again not selected for promotion to major and as this was his second non selection, he would be discharged not later than 
1 January 2007.  

10.  His records contain an AHRC Form 4145 (Election Options - Military Service Obligation), dated 9 October 2006, wherein the applicant tendered his unqualified resignation.  He further indicated he had completed his statutory and contractual MSO and desired to terminate his military status and that if his resignation was accepted he would be furnished an Honorable Discharge Certificate.

11.  Orders D-11-626228, U.S. Army HRC, St. Louis, Missouri, dated 1 November 2006, show the applicant was honorably discharged from the USAR effective 1 November 2006.

12.  The applicant provided letters from MSARNG officials who state that the applicant requires a waiver from the National Guard Bureau (NGB) to enter the MSARNG because he was twice not selected for promotion.  The official opines that the applicant should have been released at his MSO in 2002 and his record not considered by 2005 or 2006 USAR promotion boards.  The NGB waiver process can take up to 12 months.  Therefore, the MSARNG official requests the promotion non selection letters be rescinded, in effect, removed from his OMPF.  The official concluded by stating the applicant has completed an accession packet, interviewed, and was preliminary accepted for appointment in the MSARNG as a commissioned officer.  In addition, a senior field grade officer assigned to Headquarters, Airborne and Ranger Training Brigade, Fort Benning, GA, provided a letter of recommendation supporting the applicant's intent to seek a commission in the MSARNG.

13.  Army Regulation 135-133 (Ready Reserve Screening, Qualification Records System, and Change of Address Reports) prescribes responsibility and procedures for screening the Ready Reserve during peacetime.  It provides a uniform system for administering and maintaining the Ready Reserve qualification records to include guidance for processing changes of address for USAR and ARNG soldiers not on active duty.  Ready Reservists will be retained in the Ready Reserve for the entire period of their statutory or voluntary contract.  A temporary address is the place where the Soldier is or will be temporarily located while away from their "home of record."  Each Ready Reservist is responsible for providing the Commander, HRC with their mailing address upon relocation. 

14.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) defines the ARNG and USAR service obligations.  The statutory MSO is incurred on initial entry in the Armed Forces whether by induction, enlistment, or appointment.  For Soldiers appointed after 1 June 1984, all incur an 8-year statutory MSO.  A contractual obligation is acquired when an individual voluntarily enters into an agreement to serve in a military status for a specific period of time.  A contractual obligation may run concurrently with the MSO.  It may extend past the length of the MSO; it may be added to the MSO; or it may exist where no statutory obligation is incurred.  The length of the Ready Reserve obligation depends on the term of the agreement when appointed or enlisted.  Further instructions shows Ready Reservist must – 

* complete and promptly return all military correspondence
* promptly report any change of address to Commander, HRC
* comply with other requirements imposed by Commander, HRC
* report for a one day muster, when ordered

15.  Army Regulation 135-100 (ARNG and Army Reserve – Appointment  of Commissioned and Warrant Officers of the Army) provides that commissioned officers twice passed over for promotion or otherwise released from an active status due to failure to be promoted to a higher commissioned grade are not eligible for another appointment unless a waiver is authorized.  

16.  Title 10, U.S. Code, section 3368 states that an officer in a Reserve grade who is twice considered, but not recommended for promotion by a selection board, may not thereafter be considered for promotion or examined for Federal recognition. 

17.  Army Regulation 600-8-104 (Army Military Human Resources Records Management) prescribes the policies governing the OMPF and filing in the interactive Personnel Electronics Records Management System (iPERMS).  This regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  Table 2-1 of this regulation pertains to the composition of the OMPF, which states that data, forms or official documents that pertain to the permanent or temporary promotion status will be filed in the performance folder.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is seeking an appointment as a commissioned officer in the MSARNG; however, he requires a waiver from the NGB because of two non select promotion letters filed in his OMPF.  He contends he should have been released upon his MSO and that his record should never have been sent to the Reserve major promotion boards.  As such, removal of the two letters from his OMPF would allow him to accept a commission in the MSARNG without a waiver.   In addition, he contends that Government letters were sent to incorrect mailing addresses. 

2.  The applicant was appointed a commissioned officer in the USAR on 9 September 1994 for an indefinite period.  Though every Soldier has a MSO, the applicant's indefinite appointment supersedes the MSO.  As he was a commissioned officer in an indefinite status, his record was reviewed by two mandatory promotion boards.  The applicant had the option, as do all officers who complete their MSO, to submit an unqualified resignation formally terminating his appointment.  The record shows that in 2006 after the letters were filed in his OMPF, the applicant submitted his unqualified resignation and was discharged from the USAR.

3.  He argues that HRC mailed official documents to incorrect mailing addresses.  Yet, the applicant is responsible for notifying HRC of his geographic mailing addresses both permanent and temporary.  The earliest document that directs him to update his mailing address at HRC is his orders that ordered him to his initial 4-year active duty tour.  A review of regulatory guidance shows that each Soldier is responsible for updating their records.  Therefore, his argument that the letters and official correspondence did not reach him due to invalid mailing addresses is not accepted for it was his personal responsibility to maintain accurate mailing addresses by notifying HRC.

4.  The two letters are properly filed and the applicant has not provided sufficient evidence or argument to show otherwise.  Army regulations do allow an individual to seek a second officer appointment with a waiver.  The applicant is encouraged to continue working with the MSARNG officials.  Notwithstanding the applicant's arguments, there is insufficient evidence to show the letters were improperly filed.  Therefore, his 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)                                         AR20120008962



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ABCMR Record of Proceedings (cont)                                         AR20140017746



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