RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  9 December 2003
	DOCKET NUMBER:  AR2003089517

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Ms. Eloise C. Prendergast		Member	
	Mr. Raymond J. Wagner		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, promotion reconsideration to major, reinstatement in the Army Reserve, and extension of his mandatory removal date (MRD).

2.  The applicant states, in effect, that his non-promotion to major and subsequent discharge resulted because the promotion boards reviewed an incomplete or incorrect set of records.  He was advised that his non-selections were based on his non-completion of the Judge Advocate General (JAG) Officer Advanced Course (JAGOAC).

3.  He also states that he should receive promotion consideration to lieutenant colonel due to the considerable intervening time.  He also requests that the period between his first promotion board and his current appeal be deemed a break in service if he is promoted to major.  This action will serve to extend his MRD.

4.  The applicant provides copies of his two non-selection memorandums for promotion to major, his official military personnel file (OMPF), his completion certificate for the JAGOAC, his Designation as a Special Legal Assistance Officer memorandum, his resume, and a letter from the Legal Services Personnel Management Office, Army Reserve Personnel Command (AR-PERSCOM) in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of his non-selection for promotion to major by the 1989 and 1990 Reserve Components Selection Boards (RCSB).  The application submitted in this case is dated 2 April 2003.

2.  Title 10, United States 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records show he was appointed in the Iowa Army National Guard, JAG Corps, as a captain effective 15 December 1983, with prior officer and enlisted service. 

4.  The applicant was separated from the Iowa Army National Guard effective 1 December 1985 and transferred to the USAR Control Group.  The applicant’s summary of retirement points from 1 December 1985 through 22 July 1990 shows that he only earned 2 retirement points for participation in Reserve component activities.

5.  The applicant’s records show he was considered and not selected for promotion to major by the 1989 and 1990 RCSB’s.  The promotion selection board did not divulge the reason(s) except that it was not for lack of military education.  The notification memorandums, dated 10 May 1989 and 4 May 1990, issued after the applicant’s non-selections do not indicate that his non-selections were based on non-completion of the military educational requirement.

6.  After his second non-selection, the applicant was advised that he must be discharged in accordance with Title 10, United States Codes, Section 14513 or Army Regulation 140-10, unless he was eligible for and requested transfer to the Retired Reserve.  The applicant’s records show he was honorably discharged from the USAR effective 22 July 1990.

7.  In a letter dated 18 July 2003, the Chief, Legal Services Personnel Management Office, AR-PERSCOM, advised the applicant that most failures of selection for promotion are for lack of education qualification and that she was surprised that the applicant’s was not.  She also stated that she frequently saw officers who were released from active duty and then promoted without any evaluations in the Reserve Components (RC) if they met the educational qualification.  She further stated that it is the requirement that Staff Judge Advocates brief their officers who are released from active duty regarding the RC.  Most Judge Advocates, even though they are lawyers, do not realize that they are still in the Army, though in the Individual Ready Reserve.  She concluded that this is why most have no RC evaluations or lack educational qualification.

8.  The Chief, Special Actions Branch, Office of Promotions, Reserve Components, provided an advisory opinion, dated 4 June 2003.  The opinion stated that the applicant was considered and not recommended for promotion to major by the 1989 and 1990 RCSB's.  The opinion also stated that promotion selection boards do not disclose the reasons for selection or non-selection; however, in the applicant’s case, his non-selections were not for lack of military education as the applicant stated in his request.  The opinion also stated that it was impossible to determine what the promotion board saw since the board files were destroyed after 3 years in accordance with Department of the Army policy.  However, it should be noted that the applicant’s last officer evaluation report ended on 3 May 1984.  The opinion concluded that the lack of recent reports or derogatory reports is often a major factor in the board’s decision.

9.  The opinion also stated that the officer’s record and the information submitted with his application have been reviewed.  Based on this information, it has been determined that he does not have a basis for consideration by an SSB.  Therefore, it was recommended that the application be denied.

10.  The applicant was provided a copy of the advisory opinion for comment and he responded on 11 September 2003.  The applicant stated that his primary purpose for his appeal was for him to be in a position to serve on active duty in current military operations as a field grade Army officer, who has Department of Defense training in Arabic.  He requested the urgency of this operational need be considered in moving his appeal forward.  The applicant concluded that with successful conclusion of this appeal he will be able to provide critically needed service in current military operations.

11.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error, which existed in the records 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, that 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.

12.  This regulation also specifies that a copy of the officer’s records are dispatched 30 days before the convening date of the board and officers are directed to review the records and submit copies of missing documents and other corrections.  Lack of notification does not provide an independent basis to be reconsidered by an SSB.  An administrative error was immaterial if the officer, in exercising reasonable diligence, could have discovered the error or omission and taken timely corrective action notifying Headquarters, Department of the Army with supporting documentation.

13.  Army Regulation 140-10 prescribes the policies and procedures for selective retention of unit Reserve officers.  This regulation specifies that officers who are twice not selected for promotion to the next higher grade will be discharged unless they are eligible for and request transfer to the Retired Reserve.

14.  Title 10, United States Code, Section 14513, specifies that separation for failure of selection of promotion from a Reserve active status is required or transfer to the Retired Reserve, if the officer is qualified and applies for such transfer.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his non-selections for promotion to major were based on the 1989 and 1990 promotion selection boards not reviewing his military educational qualification, specifically completion of the JAGOAC.

2.  The evidence of record clearly shows that the Chief, of the Office of Promotions, Reserve Components, informed the applicant that the 1989 and 1990 promotion selection boards examined the performance portion of his OMPF and he was not among those selected for promotion.  The Chief of the RC, Promotions, also stated there is no evidence that the applicant’s non-selections were based on failure to meet the military educational requirement.  

3.  Because promotion boards are not permitted to disclose the reasons for non-selection for promotion, there is no record of why the applicant failed to be selected for promotion to the next higher grade.  In this regard, it must be noted that the selection boards that considered the applicant for promotion were instructed to select only those who were considered fully qualified for promotion to the next higher grade.  Accordingly, it must be presumed that, when reviewed by promotion boards, the applicant’s overall records failed to meet the standards established for selection on a fully qualified basis.

4.  The applicant was required by pertinent regulations to be separated based on his two non-selections; therefore, he is not entitled to reinstatement.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 4 May 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 3 May 1993.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mm___  ___ep__  __rw___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		___Mark D. Manning____
		        CHAIRPERSON

INDEX

CASE ID	AR2003089517	
SUFFIX		
RECON		
DATE BOARDED	20031209	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.