MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            14 April 1999
	DOCKET NUMBER:   AR1999022857

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

	Mr. Loren G. Harrell		Director	
	Ms. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Ms. Karen L. Wolff		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas B. Redfern, III		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, correction of her deceased husband’s military records to show that he was promoted to pay grade E-8 effective
12 August 1993 with entitlement to retroactive pay and allowances from that date.   

APPLICANT STATES:  In effect, that her husband, a former service member (FSM) was boarded and approved “best qualified” for promotion to Master Sergeant (E-8) effective 12 August 1993 as the Assistant State Retention NCO for the Minnesota Army National Guard.  She contends that the FSM was unjustly denied promotion to pay grade E-8 based solely on a negative personal opinion by the Military Personnel Officer at the time the Promotion Board was held.  She contends that the opinion was based not on a professional evaluation of the FSM, but on a personal experience which happened many years before.  In support of her application, she submits copies of three letters (Selection for Active Guard/Reserve Position dated 2 July 1993, Report of Enlisted Promotion Board Memorandum dated 16 August 1993, Establishment of Retroactive Effective Dates for Promotion of Army National Guard Enlisted Soldiers dated
25 March 1994) in support of her contentions, a statement from the FSM’s sergeant major, copies of the FSM’s certificate of Retirement, a copy of his official military photograph, and certificates of appreciation, awards, decorations and training.      

EVIDENCE OF RECORD:  The applicant's military records show:

On 2 July 1993 the FSM was selected for a vacancy as Assistant State Retention NCOIC at St. Paul, Minnesota.  On 12 August 1993 the FSM was selected as “best qualified” for promotion to E-8 by the Army National Guard Promotion Selection Board.

On 16 February 1994, while serving in the Minnesota Army National Guard in the pay grade of E-7, the FSM submitted an application for voluntary retirement based on length of service.  His request was approved on 17 May 1994 for retirement on 1 October 1994. 

Accordingly, the FSM was honorably released from active duty on 30 September 1994 and placed on the Retired list effective 1 October 1994.  He had served
20 years and 1 day of total active service.

A review of the applicant’s records shows no indication that he was ever promoted to the pay grade of E-8.  In the processing of this case information was obtained from officials of the National Guard Bureau.  An official from the Minnesota Army National Guard, revealed that there was not a controlled grade allocation to permit the FSM’s promotion to the pay grade of E-8.

Title 10, U.S. Code, section 12012(a) (Authorized strengths: senior enlisted members on active duty or on full-time National Guard duty for administration of the reserves or the National Guard), provides that the number of enlisted members in pay grades E-8 and E-9 who may be on active duty (other than for training) or on full-time National Guard duty under the authority of section 502(f) of title 32 (other than for training) as of the end of any fiscal year in connection with organizing, administering, recruiting, instructing, or training the reserve components or the National Guard may not exceed the number for that grade and armed force (E-9 603; and E-8 2585).

The applicant provided a letter from the FSM’s sergeant major wherein he described the FSM’s military career and accomplishments since their introduction.  In summary, he contended that the FSM had been twice selected for promotions to master sergeant and was not promoted either time due to no fault of his own.  He also contended that he tried to fight the politics involved using the chain of command and was involuntarily retired at the same time as the FSM.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s contention that the FSM was unjustly denied promotion to pay grade E-8 based solely on a negative personal opinion by the Military Personnel Officer at the time the Promotion Board was held, appears to be without merit.  The FSM was selected for promotion; however, before a promotion could be effected, a controlled grade allocation had to be available and in the FSM’s case, it appears that one was not available.  Therefore, the contention is based on speculation on her part and is not supported by the evidence of record.   

2.  While it is unfortunate that an allocation was not available and the FSM was not promoted to the pay grade of E-8 while he was on the selection list, the lack of controlled grade allocations for personnel who are on the selection lists does not necessarily constitute and error or injustice.  The Board also notes that there are many instances in which individuals are selected for promotion but the promotions are delayed or in some cases never occur.  The Board determined that in the absence of any evidence of error or injustice there is no basis to approve the applicant’s request for promotion of the FSM to pay grade E-8.   

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___klw___  __tbr ___  __aao___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022857	
SUFFIX		
RECON		
DATE BOARDED	1999/04/14	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.000	
2.  283	128.000	
3.  189	110.000	
4.		
5.		
6.