MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  21 November 2000
	DOCKET NUMBER:  AR1999026468

	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. Carl W. S. Chun		Director	
	Mr. David E. Weightman .		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Thomas A. Pagan		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Roger W. Able		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:  Correction of her military records to remove her name from the results of the 1997 and 1998 Reserve Components Selection Boards (RCSB’s), and to show promotion to colonel effective 18 May 1998.

APPLICANT STATES:  Confusion existed during the transition between legislation concerning the Reserve Officer Personnel Act (ROPA) and the Reserve Officer Personnel Management Act (ROPMA), delaying and ultimately denying her promotion to colonel in the Wyoming Army National Guard (WYARNG).  She and The Adjutant General (hereinafter referred to as the TAG) were advised both verbally and in writing by National Guard Bureau (NGB) officials that her Certificate of Eligibility (CofE) entitlement based on Federal Recognition Board (FRB) action was authorized and grandfathered under the ROPMA rules.  Her promotion actions were initiated in a timely manner, and had her state promotion actions been handled properly and timely by NGB officials, she would not have been blocked from the promotion.  She is supported by the TAG and provides her own statement, statements from others, and a comprehensive submission of pertinent documents, in support of her request.

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

The applicant was initially appointed in the WYARNG on 21 April 1978.  She had prior enlisted service.  She attained the rank of lieutenant colonel effective 
14 October 1993, with a promotion eligibility date (PED) of 13 October 1998.

On 7 November 1996 a FRB convened and determined the applicant, and others, qualified for issuance of a CofE for colonel and recommended she be granted FR for that purpose.

On 16 May 1997 the Assistant TAG advised the NGB by memorandum that WYARNG officials forwarded her application for CofE for promotion to colonel to the NGB on 16 December 1996, and were subsequently notified that her name was placed on the March 1997 nomination list.  The TAG cited the law that an officer approved for FR and nominated by the President for promotion to the next higher grade is excluded from being considered by a mandatory ROPMA RCSB. The TAG expressed his concerns at the time that it was significant for him to know when the nomination list was approved and FR extended for the CofE, and that while he intends to follow statutory and NGB procedures, delays are precluding proper and equitable management of personnel.

The Deputy Director, Personnel and Manpower, NGB, advised the TAG by memorandum (undated) that “I also share your concern regarding the length of time it is taking promotion recommendations to be approved by the President and confirmed by the Senate.”

He estimated it would be forthcoming in September or October of that year.  He also advised him that “you may be confident that they have already been recommended by a board [FRB] appointed by the Secretary of the Army and therefore, any recommendations by a subsequent DA mandatory board will not apply.”  He also stated that in the future WYARNG officials would need to request the officer(s) be deleted from the results of the 1997 RCSB.

On 13 June 1997 the Deputy Director, Personnel and Manpower, NGB, advised all states that statutes allow an officer possessing a CofE for FR and nominated by the President to be ineligible for consideration by an RCSB for up to 2 years.  He also advised that “All certificates of eligibility for promotion given prior to the date of this memorandum will continue to be honored under this guidance.”

On 18 June 1997 a WYARNG official advised an NGB official by e-mail that it was their agreement that regardless of the outcome of the 1997 RCSB, “every LTC who made an appearance and who is a Certificate of Eligibility holder should be removed from the [RCSB] results.”

The 1997 RCSB convened from 15 July to 15 August 1997, and did not select the applicant for promotion to colonel.  She was notified of the results by letter, addressed through the TAG, dated 18 February 1998.

On 1 March 1998 the TAG summarized the various delays in the FR of the applicant’s CofE and recommended her name be deleted from the 1997 RCSB results.  The applicant’s name was submitted on the 6-97 nominations list, also late, and which was read in the record for Senate Confirmation on 29 January 1998, prior to the 1997 RCSB results being released.  He passed up opportunities to immediately promote the officers recommended for CofE’s, and stayed within the guidance given by NGB officials.

On 18 March 1998 the Assistant Deputy Director, ARNG Human Resources, NGB, advised all states that effective 1 April 1998, requests for FR for CofE or Position Vacancy Promotions on officers scheduled for RCSB consideration must be received in the NGB no later than 60 days prior to the convening date of the respective RCSB.

On 16 April 1998 the Chief, Personnel Division, NGB, advised the TAG that a legal opinion concerning this matter was obtained from the NGB Staff Judge Advocate.  The opinion showed that under ROPMA, effective 1 October 1996, “(b)ecause Federal recognition is not extended until an officer holding a certificate of eligibility is placed into a position authorized the higher grade and promoted by the state, mere possession of a certificate of eligibility is not sufficient to prevent application of 10 USC 14316(c) to an ARNG officer non-selected by a mandatory board who holds a certificate of eligibility for the higher grade.”
Effective 10 August 1998, the applicant was assigned duties as Deputy Chief of Staff, Operations, Paragraph 006A, Line 01, a colonel position.

The TAG signed a memorandum for record, undated, showing it was his intent to position vacancy promote the applicant to colonel.  “1.   Her name was read into Congressional Records on 29 January 1998 for promotion to Colonel in the Reserve of the Army.  2.  Vacancies were anticipated based on projected retirements.  She has been assigned to paragraph 06 line 01 as the Deputy Chief of Staff for Operations.”

The 1998 RCSB convened from 14 July to 14 August 1998, and did not select the applicant for promotion to colonel.

The 1999 RCSB convened from 13 July to 13 August 1999, and selected her for promotion to colonel.  This RCSB was approved by the President on 18 February 2000, released on 9 March 2000, and received Senate confirmation on 30 March 2000.  She was promoted to colonel effective 17 April 2000.

The applicant was not issued a CofE, was not placed in a colonel position prior to 10 August 1998, and was not promoted to colonel based on position vacancy.

Among other provisions, the ROPMA does not permit non-consideration of lieutenant colonels for promotion to colonel based on issuance of a CofE alone, or to exclude them or to remove their names from the results of respective RCSB’s on that basis alone.  For position vacancy promotion purposes, prior to a non-selection by an RCSB, these officers must be placed in an authorized position, and promoted to receive FR from the NGB.

The provisions cited by the TAG and applicant, 10 USC 14301 (c) (1) “an officer who has been approved for Federal recognition…and nominated by the President for promotion to the next higher grade….is excluded from being considered by a ROPMA board.”, is an incomplete quote and does not apply to CofE’s.  It applies to position vacancy promotions only.  It provides that when approved for Federal recognition for a position vacancy promotion and nominated by the President, an RCSB consideration is not applicable and only then (the applicant) may be excluded from the RCSB consideration.

Current policies and procedures for promotion of Reserve officers provides that individuals will receive mandatory promotion consideration by an RCSB prior to their maximum years of time in grade (MYIG) so that, if selected, they may be promoted on their future MYIG.  It also provides that those lieutenant colonels not selected for promotion to colonel by an RCSB may not then qualify for position vacancy promotions.  Non-selections include those in the zone of consideration.  FRB’s are not mandatory ROPMA promotion boards.

The Comptroller General has previously ruled that in the absence of specific statutory authority, the United States was not liable for the negligent or erroneous acts of its officers, agents or employees.

In an opinion in this case, the Chief, Personnel Division, NGB, stated that the State of Wyoming intended to promote the applicant, initiating the paperwork in advance of the vacancy, however, the vacancy occurred after the next RCSB convened.  She opined that the NGB was at fault in the confusion and misguided information, and the State of Wyoming followed the guidance it thought would allow the applicant to be promoted in the vacancy when it became vacant.  She recommended approval of the applicant’s request.  The opinion is incorporated herein.

The applicant was provided a copy of the advisory opinion.  She concurred with the opinion.

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

1.  The Wyoming TAG has related he relied on a misinterpretation of the ROPMA as it applied to the promotion status of the applicant.  He relates he understood and was led to believe he could not promote the applicant without following procedures dictated and handled by NGB officials, and that non-selection for promotion by an RCSB could be deleted based on issuance of a CofE.  The applicant initiated her promotion action by requesting a CofE in sufficient time to be resolved in her favor.  He supported her promotion but could not take further action partly based on the guidance received from the NGB officials.  The applicant and the TAG relied on the guidance provided by NGB officials.  It was not until the applicant was not selected for promotion by the RCSB and was not eligible for a position vacancy promotion was the TAG and the applicant advised of the proper application of the ROPMA in her case.

2.  The Board does not dispute the TAG’s comments.  However, notwithstanding the foregoing, the applicant was properly considered by the 1997 RCSB when she was not selected.  She could only have been promoted under position vacancy rules prior to the non-selection, if otherwise qualified, including placement in an available colonel position.  While the TAG stated that with issuance of the CofE there were positions available for her placement and promotion prior to her non-selection, a position was not identified until she was considered and not selected by the 1997 RCSB.  She was not excluded from consideration by the 1997 RCSB.  Under ROPMA, no lieutenant colonel in those circumstances was excluded.  The non-selection, in effect, closed the door for her promotion via CofE or position vacancy.
3.  Under these circumstances, the Board can not conclude that the TAG could have taken action to promote the applicant prior to her RCSB non-selection.  The TAG may have taken action to promote the applicant by position vacancy procedures prior to 1 October 1996 but did not do so.

4.  The evidence of record does not show that a vacancy existed for the applicant, or that she was applied to a colonel position at the time of her 1997 promotion consideration and non-selection.  It has not been shown a position was available or that the applicant could have been placed in such a position prior to the non-selection by the 1997 RCSB.  The TAG and the applicant show 
two positions available, one effective 18 May 1998 and the other effective 
10 August 1998; however, both of these positions were available only after the non-selection and further ineligibility for a position vacancy promotion.  In his 
16 May 1997 memorandum, the TAG cites in error the law governing exclusion from consideration by a ROPMA RCSB.  The applicant also cites in error that she could have been promoted by 18 May 1998 and she should not have been considered by the RCSB’s.  Both knew, or should have known, the meaning of the provision and that it did not pertain to the applicant’s case.  It did not show that FR for a CofE excluded individuals from ROPMA RCSB consideration.  It provides that when approved for Federal recognition for a position vacancy promotion and nominated by the President is an RCSB consideration not applicable, and only then the applicant would have been excluded from the RCSB consideration.

5.  Having considered the opinions and reviews rendered in this case, it is concluded that the equities of the case do not weigh in favor of the applicant and relief is not warranted for the following reasons.  First, the record does not show that there was a position available for promotion purposes for the applicant prior to her consideration and non-selection by the RCSB.  Second, there is no valid reason why the applicant should not have been considered by the 1997 RCSB.  And third, the applicant and the TAG have stated the earliest position vacancy as 18 May and 10 August 1998, subsequent to the effective date of the ROPMA and subsequent to her non-selection by the 1997 RCSB.  At the convening of the 1997 RCSB, there was no position vacancy for the applicant, she was not in a colonel position and she was not otherwise selected for or promoted to colonel.  After the consideration and non-selection she was no longer eligible or entitled to a CofE or a vacancy promotion.  The apparent “fog” in this case occurred subsequent to the effective date of the ROPMA.  The procedures for vacancy promotion equally pertain to all officers effective on 1 October 1996.

6.  The law mandates consideration for promotion, and mandatory ROPMA RCSB consideration applies to all lieutenant colonels as in the applicant’s case.  The Board does not dispute some confusion shared between NGB officials and the TAG.  The applicant has not convinced the Board, however, that it was the fault of NGB officials that she did not receive a position vacancy promotion in 1998.  She has not shown she met all of the provisions for a position vacancy promotion, namely, an available colonel position.  When positions did occur in 1998 as cited by her and the TAG, she had already been non-selected by the 1997 RCSB, and not eligible or entitled to a position vacancy promotion, the same as all other non-selected officers in the other NG States/Territories, and the Army Reserve.

7.  The Board also notes the Comptroller General has previously ruled that in the absence of specific statutory authority, the United States was not liable for the negligent or erroneous acts of its officers, agents or employees.

8.  The applicant has not shown, through creditable evidence, that an authorized available colonel’s position existed within her command, nor that she would have been selected for that position prior to her failure of selection in 1997.

9.  Based on the preceding, the applicant is not entitled to correction of her military records to remove her name from the results of the 1997 and 1998 RCSB’s, or to show promotion to colonel effective 18 May 1998.

10.  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 this requirement.

11.  In view of the foregoing, and insofar as the Department of the Army is concerned, 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

__tp____  __to___  ___ra_____  DENY APPLICATION

Carl W. S. Chun
Director, Army Board for Correction 
of Military Records

INDEX

CASE ID	AR1999026468	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001121	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.