PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 December 1999                   
	DOCKET NUMBER:   AR1999027293

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Mark D. Manning		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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be reconsidered for promotion to colonel and he be promoted to colonel in a unit vacancy effective 1 October 1997.

3.  The applicant states that he was selected for promotion by the 1994 selection board but was not notified of his selection.  Therefore, he could not accept or decline.  His name was left off the 1995, 1996, 1997 and 1998 board consideration lists.  Supporting evidence is as listed on the DD Form 149.

4.  The applicant’s military records show that after having had prior service in the Regular Army and the U. S. Army Reserve, he entered the Vermont Army National Guard in January 1979.

5.  On 14 October 1994, the U. S. Total Army Personnel Command notified the Army National Guard Personnel Center that the applicant had been selected for promotion to colonel.  

6.  On 16 December 1997, the Vermont Army National Guard notified the Army National Guard Readiness Center that, due to personnel changes in the Vermont Army National Guard in 1994 and later, the applicant was never notified of his promotion selection and he was also left off promotion consideration rosters in subsequent years.  He was assigned to a vacant colonel position on 1 October 1997 and therefore the State requested an exception to policy to promote him to that vacancy.

7.  On 21 January 1998, the National Guard Bureau (NGB) responded by returning the request without action.  The State was informed that the applicant should have been considered for promotion in 1995, 1996 and 1997.  A requirement existed for a correction of military records under the provisions of title 10, U. S. Code, section 1552, for the 1995 and 1996 selection boards (and also the 1997 board) to determine whether he should be recommended for promotion.

8.  On 9 July 1998, the applicant declined his 1994 promotion in an effort to resolve his problem.

9.  Army Regulation 135-155 provides policy and procedures for the selection and promotion of commissioned officers of the Army National Guard of the United States and the U. S. Army Reserve.  In pertinent part, it states that colonel selection boards will convene at the discretion of the Secretary of the Army.  Headquarters Department of the Army will prescribe the minimum promotion service and total years commissioned service required for an officer for each branch and required that the name of each officer with the prescribed promotion service and years of service be placed on the appropriate zone of consideration list.  Officers not selected for promotion to colonel or selected but for whom there is no vacancy and they decline the promotion will be considered again by a selection board.

10.  In the processing of this case, an advisory opinion was obtained from the NGB (SEE ATTACHED).  The NGB noted that the applicant’s records were omitted from the promotion selection boards for 1995, 1996, 1997 and 1998 due to government administrative errors and it would be fair and equitable to have his records reviewed under the appropriate criteria for each board.  His declination request dated 9 July 1998 should be declared invalid as it was not processed correctly.  The NGB did not support his request that he be unit vacancy promoted effective 1 October 1997 since he was in the zone of consideration for the boards mentioned above.  A Special Selection Board must recommend him prior to his promotion to colonel.

11.  A copy of the advisory opinion was provided to the applicant for comment.  He did not respond within the given time frame.

CONCLUSIONS:

1.  The Board concludes that a Government error occurred in this case.

2.  The applicant was selected for promotion to colonel in 1994 but he was never notified of his selection and so was not given the opportunity to accept or decline the promotion.  Since the State of Vermont first mentions a colonel unit vacancy as of October 1997, it is likely he would have declined this promotion (as he subsequently did in July 1998).

3.  Since the applicant did not accept his promotion in 1994, whether through Government error or not, his records should have been considered by subsequent promotion selection boards.  Through Government error, they were not.

4.  In accordance with the advisory opinion, it would be fair and equitable to have the applicant’s records considered for promotion to colonel under the appropriate criteria for the 1995, 1996, 1997 and 1998 colonel selection boards.

5.  The applicant had to have been recommended for promotion to colonel before being eligible to fill a unit vacancy colonel position.  Since the State has not shown that such a position became vacant earlier than 1 October 1997, in accordance with the advisory opinion it would not be appropriate to consider him for promotion to colonel effective that date unless and until he is recommended for promotion by one of the later colonel special selection boards noted above.

6.  In view of the foregoing and in accordance with the advisory opinion, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:

     a.  declaring the applicant’s promotion declination request dated 9 July 1998 invalid; and

     b.  making the applicant’s records available to the next scheduled Special Selection Board for promotion consideration to colonel under the 1995, 1996,1997 and 1998 DA Mandatory Selection Board criteria.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__tnk___  __eb____  __mdm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Thomas N. Kuhn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999027293	
SUFFIX		
RECON		
DATE BOARDED	19991215	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.03	
2.		
3.		
4.		
5.		
6.