IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20150010715 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20150010715 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20150010715 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 to have the additional instruction ?Soldier was 3x passover for promotion to [captain (CPT)]? removed from her separation order. 2. The applicant states, in effect, that she would like to join the Air National Guard as a commissioned officer, as a registered nurse. However, she is unable to do so since she was passed over three times for promotion to CPT in the U.S. Army Reserve (USAR). She had a total of 15 years in the military reserves as both an enlisted Soldier and as an officer. 3. The applicant provides a: * Self-authored statement * National Guard Bureau (NGB) memorandum, dated 9 August 2013 * Orders 13-081-00076, issued by Headquarters, USAR Command (USARC), dated 22 March 2013 * DA Form 2-1 (Personnel Qualification Record) * Chronological Statement of Retirement Points, dated 13 March 2013 * Email 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 has prior enlisted service in the USAR and in the U.S. Navy Reserve. 3. The applicant had a break in service from 23 January 2006 to 13 December 2006. On 14 December 2006, the applicant was appointed as a second lieutenant in the USAR. 4. The applicant was promoted to first lieutenant (1LT) in the USAR on 20 August 2008. 5. Orders 13-081-00076, issued by Headquarters, USARC, Fort Bragg, NC, dated 22 March 2013, notified the applicant she was being discharged from the USAR due to being a three-time passover for promotion to CPT. 6. On 1 April 2013, the applicant was honorably discharged from the USAR in the grade of 1LT. 7. The applicant provided a memorandum from the NGB, dated 9 August 2013, that denied her request to be accessed into the Michigan Air National Guard due to her two-time non-selection for promotion by the USAR promotion selection boards. 8. In the processing of this case, an advisory opinion was provided on 17 March 2016 by the Chief, Personnel Management Division, Headquarters, USARC, Fort Bragg, NC. They recommended disapproving the applicant’s request based on the following: a. Review of the applicant’s promotion board file indicates she was considered by the Fiscal Year (FY) 2011, FY[20]12, and FY[20]13 CPT Army Medical Department Center (AMEDD) promotion boards with no board recommending her for promotion. The FY[20]13 promotion board was held 6 months after the FY[20]12 board. Should the applicant have been selected for promotion by the FY[20]13 promotion board, she would not have been separated since she would have then been on a list of officers selected for promotion at the time of prescribed removal. b. The additional instruction is placed on the order to provide documentation as to the reason of removal. In this case, an act of law required the applicant to be removed from active status. Since there is no other indication in the loss code or description on the order to document the reason for removal, this comment serves to inform others that certain actions would be prohibited or, in some cases, require waiver approval for a personnel action to be performed. Removal of the comment would potentially allow actions to occur without due process. c. The applicant was provided a copy of the opinion in order to allow her an opportunity to submit comment or rebuttal; however, she has failed to respond. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Title 10, U.S.Code, Section 14504, effect of failure of selection from promotion: reserve first lieutenants of the Army, Air Force, and Marine Corps and reserve lieutenants (junior grade) of the Navy states, “a [1LT] on the reserve active-status list of the Army, Air Force, or Marine Corps or a lieutenant (junior grade) on the reserve active-status list of the Navy who has failed of 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 in accordance with section 14513 of this title 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: 1. The applicant’s request to have the additional instruction of ?Soldier was 3x passover for promotion to CPT? removed from her separation order was carefully considered. 2. The USARC stated in their advisory opinion that the applicant was passed over for promotion to CPT three times. The additional instruction is placed on the order to provide documentation as to the reason of removal. In this case, an act of law required her to be removed from active status. Since there was no other indication in the loss code or description on the order to document the reason for removal, this comment serves to inform others that certain actions would be prohibited or, in some cases, require wavier approval for personnel actions to be performed. Removal of the comment would potentially allow actions to occur without due process. 3. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010715 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010715 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2