MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  28 November 2000
	DOCKET NUMBER:  AR2000035241

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Wilford A. Hale		Member	
	Mr. John H. Kern		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:  Removal of his name from the list of officers considered by the 1997 and 1998 mandatory promotion boards, and permit his promotion to colonel in the Wyoming National Guard on the original date of the position vacancy, in effect, on 28 February 1998.

APPLICANT STATES:  “Wyoming’s actions were prudent and legal based on law, interpretation of law, NGB [National Guard Bureau] policy, and continued assurances.  Subsequent changes resulted in my being denied a position vacancy promotion that I was determined to be qualified for by a Federal recognition board.”  He could have been promoted by requesting an additional TDA (Table of Distribution and Allowances) position, but the Wyoming Army National Guard (WYARNG) opted to obtain a Certificate of Eligibility (CofE) with Senate confirmation instead, which occurred on 31 July 1997.  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 his promotion to colonel.  “If the state had perceived an indication of NGB's inability to support the certificates prior to February 1998, they could have pursued other options.”  He submits a comprehensive application, including his own statement, statements from others, and other documentation, including the separation of an officer in the rank of colonel from the WYARNG effective 28 February 1998, in support of his request.

EVIDENCE OF RECORD:  The applicant's military records were not furnished to the Board.  Information provided by the applicant shows:

The applicant, while serving in the WYARNG as a lieutenant colonel, requested a CofE for position vacancy promotion purposes.  (A CofE is issued to officers for whom there are no position vacancies and determines their fitness for future appointments or promotions, and may be valid for up to 2 years.)

On 7 November 1996 a Federal Recognition Board (FRB) convened and determined the applicant, and others, qualified for issuance of a CofE for colonel and recommended he be granted FR for that purpose.

On 13 March 1997 another officer was advised by a WYARNG Judge Advocate General official that under the ROPMA statute “a promotion board (ROPMA board)” may not consider for promotion an officer approved by a FRB and nominated by the President for the promotion.  The official questioned the NGB’s awareness of this provision.

On 16 May 1997 the Assistant TAG advised the NGB by memorandum that WYARNG officials forwarded the applicant’s, and others, applications for a CofE for promotion to colonel to the NGB on 16 December 1998.  He 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 promotion board.  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 this coming September or October.  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 WYARNG officials will in the future need to request the officer(s) be deleted from the results of the 1997 mandatory promotion board.

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 a mandatory ROPMA board 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 that it was their agreement that regardless of the outcome of the 1997 mandatory ROPMA board, “every LTC who made an appearance and who is a Certificate of Eligibility holder should be removed from the results.”

On 31 July 1997 his name was read into the Congressional record for promotion to colonel, and on 16 September 1997 he was issued a CofE by the Chief, NGB.

The 1997 Reserve Components Selection Board (RCSB), also called the mandatory ROPMA board, convened from 15 July to 15 August 1997, and did not select the applicant for promotion to colonel.

On 18 December 1998 a WYARNG order separated an officer in the rank of colonel for retirement purposes, who then held the colonel position of Facilities Management Officer, paragraph 003J, Line 01 (999M).

On 1 March 1998 the TAG summarized the various delays in the FR of CofE’s and stated 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 Director of Logistics, Paragraph 007A, 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.   His name was read into Congressional Records on 31 July 1997 for promotion to Colonel in the Reserve of the Army.  2.  Vacancies were anticipated based on projected retirements.  He has been assigned to paragraph 007A line 01, STARK TDA as Deputy Chief of Staff for Logistics[.]”

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

He has not been selected for promotion by subsequent RCSB’s.

The applicant was not placed in a colonel position prior to 10 August 1998, and was not promoted to colonel.

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 officers 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 time in grade (MTIG) so that, if selected, they may be promoted on their future MTIG.  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.

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.  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.

2.  Based on the preceding, the applicant is not entitled to correction of his military records to remove his name from the results of the 1997 and 1998 RCSB’s, and to show promotion to colonel effective 28 February 1998 as he has requested.

3.  The applicant and the Wyoming TAG have stated they relied on a misinterpretation of the ROPMA as it applied to the promotion status of the applicant.  They state they understood and were led to believe the applicant could not be promoted 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’s promotion action by requesting a CofE was initiated in sufficient time, and the TAG supported his promotion but could not take further action partly based on the guidance received from the NGB officials.  They further stated that it was not until the applicant was not selected for promotion by the RCSB and was not eligible for a position vacancy promotion were they advised of the proper application of the ROPMA in his case.

4.  The applicant was properly considered by the 1997 and 1998 RCSB’s when he was not selected.  He could only have been promoted under position vacancy rules prior to the non-selection, if otherwise qualified, including placement in an available colonel position.  He has not shown, through creditable evidence, that an authorized available colonel’s position existed within his command, nor that he would have been selected for that position prior to his failure of selection in 1997.  Notwithstanding the issuance of the CofE, there were no positions identified as available for his placement and promotion prior to his non-selection. A position was not identified until he was considered and not selected by the 1997 RCSB.  He was not excluded from consideration by the 1997 or 1998 RCSB.  Under ROPMA, no lieutenant colonel in those circumstances was excluded.  The non-selection by the 1997 RCSB, in effect, made his CofE and eligibility for a position vacancy promotion null and void.

5.  The Board can not conclude that the TAG could have taken action to promote the applicant prior to his 1997 RCSB non-selection.

6.  The evidence of record does not show that a vacancy existed for the applicant prior to his non-selection, or that he was applied to a colonel position prior to the 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 28 February 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’s reference also cites in error that he could have been promoted by 28 February 1998 and he should not have been considered by an RCSB.  Both knew, or should have known, the meaning of the provision and that it was not pertinent in 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.

7.  The Board concludes that the equities of the case do not weigh in favor of the applicant and relief is not warranted in his case.  The record does not show that there was a position available for promotion purposes for the applicant prior to his consideration and non-selection by the RCSB; there is no valid reason to justify why the applicant should not have been considered by the 1997 RCSB; and the applicant has not convinced the Board that it was the fault of NGB officials that he did not receive a position vacancy promotion in 1998, subsequent to the effective date of the ROPMA and subsequent to his non-selection by the 1997 RCSB.  At the convening of the 1997 RCSB, there was no position vacancy for the applicant, he was not in a colonel position and he was not otherwise selected for or promoted to colonel.  After the consideration and non-selection he was no longer eligible or entitled to a vacancy promotion.  The procedures for vacancy promotion equally pertain to all officers effective on 1 October 1996.  The mandatory ROPMA RCSB consideration applied to all lieutenant colonels as in the applicant’s case.  The Board does not dispute some confusion shared between NGB officials and the TAG.  However, he has not shown he met all of the provisions for a position vacancy promotion, specifically, an available colonel position.  When positions did occur in 1998, as cited, he had already been non-selected by the 1997 RCSB, and was not eligible or entitled to a position vacancy promotion.

8.  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

__mp___  __wh__  __jk___  DENY APPLICATION

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

INDEX

CASE ID	AR2000035241	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001128	
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.