MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:  27 June 2000
	DOCKET NUMBER:   AR1999027791

	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 S. W. Chun		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Walter T. Morrison		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:  Promotion to major effective 1 October 1994.

APPLICANT STATES:  In effect, that his former commander directed a less qualified junior Active Guard Reserve (AGR) captain to the Brigade S-1 position on 1 October 1994 and promoted him to major.  This did not allow the applicant to be moved into the positions as best qualified and senior captain in the Brigade. He submits a chronology of events in support of his request.

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

He was appointed in the Virginia Army National Guard (VA-ARNG) as a second lieutenant effective 8 March 1990, with prior enlisted service.

He was promoted to first lieutenant effective 24 September 1981 and captain effective 23 September 1985.

He was on an Active Guard/Reserve (AGR) Program tour.

He was considered and non-selected for promotion to major by the 1992 Reserve Components Selection Board (RCSB).

He was considered and selected for promotion to major by the 1993 RCSB.

On 30 August 1993, he requested to decline his promotion status to the grade of major, and to continue as an AGR officer with continued assignment to the VA-ARNG.  His request was approved on 31 August 1993, with a declination expiration date of 8 April 1996.

He was honorably separated for disability retirement in the grade of captain effective 31 October 1996.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that ARNGUS or USAR commissioned officers selected for promotion to the next higher grade may decline the promotion for a period not to exceed 1 year; however, the period of declination may be extended to 3 years.  Unit officers will be retained on the promotion list for the maximum period authorized.

The Chief, Personnel Division, Army National Guard Directorate, National Guard Bureau, recommended that the applicant’s request for his promotion date to major be changed to 1 October 1994 be denied.  She states there is no evidence to support his claim.  The Department of the Army Mandatory Board recommends individuals for promotion, it does not promote National Guard officers.  It is the decision of the VA-ARNG to promote its officers.  The applicant 
had the option of entering the USAR for immediate promotion.  In addition, the NGB does not have enough facts to determine “best qualified” for the positions in question.  The VA-ARNG appears to have acted in accordance with all applicable laws and regulations with regards to the promotion in question.

The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 6 January 2000.  In his rebuttal, the applicant requested promotion consideration to major by a special selection board under 1994 criteria and based upon his qualifications, he feels he would be selected.  He further stated that he did not elect declination of promotion with continued assignment in the VA-ARNG in the present grade.  

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.  In view of the circumstances in this case, the applicant is not entitled to promotion or reconsideration for promotion to major.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contentions have been noted by the Board; however, they are not sufficiently supported by his records or his application.  The Board concludes that the applicant’s allegations have not been substantiated. 

3.  The Board also notes that the applicant was considered and selected for promotion to major by the 1993 selection board but declined promotion at the time.  The applicant further contended in his rebuttal to the advisory opinion that he did not elect to decline his selection for promotion to major by the 1993 selection board; however, his records show he elected to decline the promotion and his request was approved.  Upon his declination he continued to serve in his AGR status.

4.  It is also noted that the applicant is not entitled to promotion reconsideration to major by a special selection board under 1994 criteria, as his declination for promotion did not expire until 8 April 1996; therefore, he is not eligible for promotion consideration under that criteria.  

5.  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.

6.  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

___mm___  __cg____  __wm____  DENY APPLICATION

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

INDEX

CASE ID	AR1999027791	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000627	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.