MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  28 November 2000
	DOCKET NUMBER:  AR2000035242

	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:  Correction of his military records to remove his name from the results of the 1997 Reserve Components Selection Board (RCSB), and to show promotion to colonel effective 12 March 1998.

APPLICANT STATES:  Confusion regarding ROPMA (Reserve Officer Personnel Management Act) law and NGB (National Guard Bureau) regulations (NGR’s) during the transition to ROPMA caused misinterpretation of the law.  He was promoted in good faith to colonel in accordance with the law and policy known at the time and he was granted Federal Recognition (FR) for this purpose.  The Wyoming Army National Guard (WYARNG) intended to promote him to colonel as evidenced by his selection for an 06 command, request and authorization for an AGR control grade, and a WYARNG promotion order.  Based on receiving a Certificate of Eligibility (CofE) for promotion, he should not have been considered by a mandatory promotion board (Reserve Components Selection Board – RCSB).  His promotion was later unfairly and unjustly revoked based on the 1997 RCSB non-selection.  Had he or The Adjutant General (TAG) known of the future promotion being in jeopardy, he could have been promoted earlier in 1997 or on 5 January 1998 to avoid the ROPMA changes.  He is strongly supported by the TAG.  He provides a comprehensive application containing his own statement, statements from others, and submission of pertinent documents in support of his request.

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

With prior enlisted service, the applicant completed the Wyoming Military Academy (Officer Candidate School) and was appointed in the WYARNG, Field Artillery, effective 4 March 1979.  His highest military education is shown as 
50 percent completion of the Command and General Staff Officer College on 
11 October 1992.  His highest civilian education is shown as a 1997 bachelor of science degree from the University of the State of New York.

He attained the rank of lieutenant colonel effective 19 March 1993.  His PED (promotion eligibility date) for colonel at the time was 18 March 1998.  He was assigned as WYARNG Director of Personnel effective 1 July 1997.

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 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.”

He received a CofE issued by the NGB on 26 September 1997.  The CofE entitled him to FR for a position for which qualified for a period of 2 years.

On 5 January 1998, orders were published assigning him as Post Commander (Training Site), Camp Guernsey, WY, a colonel position, to be effective 12 March 1998, upon departure of the incumbent.  He was previously identified to replace the incumbent at that future date based upon departure of the incumbent on 
12 March 1998.

Also on 5 January 1998 he was promoted to colonel effective 12 March 1998 by the WYARNG, with NGB FR effective 5 January 1998.

On 18 February 1998 he was notified by letter from the Chief, Office of Promotions, Reserve Components, Total Army Personnel Command, that he was considered but not selected for promotion to colonel by the 1997 RCSB.  The RCSB convened from 15 July to 15 August 1997.  The reason(s) for the non-selection was not divulged by the promotion board, except that it was not based on education.

On 16 March 1998 the NGB extended FR for the promotion effective 16 March 1998.  The NGB memorandum for promotion stated the effective date of this promotion is 16 March 1998, and that, “This promotion is not valid and will be revoked if you are not in a promotable status on the effective date of promotion …”

On 20 February, 1 March and 5 May 1998, the TAG requested the NGB have the applicant’s name, plus others holding CofE’s, removed from the RCSB results of non-selection.  The TAGg cited NGB assurances and the law, and that these officers should remain in a promotable status until the expiration of their CofE’s.

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.”

On 2 December 1999 the Chief, NGB advised the applicant that he approved an Inspector General (IG) investigation concerning his promotion to colonel.  He stated, “That investigation established that NGB exceeded its authority when it extended federal recognition to LTC [applicant] in the grade of Colonel, in violation of the Reserve Officer Promotion Management Act.”  He directed revocation of the promotion.  On 7 December 1999 the previous FR and promotion were revoked.

The applicant’s name was deleted from 1998 RCSB consideration and he was not considered for promotion to colonel by that promotion board.  He was subsequently considered by a special selection board (SSB) under 1998 promotion criteria, based upon erroneous deletion of his name from the 1998 RCSB consideration.  The results of the SSB have not yet been announced.

The applicant was also not identified for 1999 RCSB consideration and was not considered by that promotion board.

The applicant was not identified for consideration by the 2000 RCSB, which convened in July 2000.

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 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.

In an opinion in this case, the Chief, Human Resources, NGB, stated that the State of Wyoming intended to promote the applicant based on a future vacancy, however, due to several instances of miscommunication and inaccurate advice concerning CofE’s and review by RCSB’s, his promotion was erroneously delayed until he was no longer eligible for a position vacancy promotion.  He stated the promotion of the applicant to colonel effective 12 March 1998 was revoked based on the IG’s report on this matter, which concluded the NGB exceeded its authority by issuing a promotion FR order.  He further stated the applicant has been adversely affected and has suffered an injustice that should be corrected, and that it would be fair and equitable to correct his records as requested.

The applicant concurred with the advisory 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.  In view of the circumstances in this case, the applicant is not entitled to correction of his military records to remove his name from the results of the 1997 Reserve Components Selection Board (RCSB), and to show promotion to colonel effective 12 March 1998.

2.  The applicant was properly considered by the 1997 RCSB when he was not selected.  He could only have been promoted under position vacancy rules prior to the non-selection.  It has not been shown he was prevented from promotion prior to his non-selection by the RCSB.  It has also not been shown he was erroneously considered by the RCSB.  The non-selection rendered him ineligible for a position vacancy promotion.

3.  The applicant 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.

4.  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.

5.  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 a position did occur in 1998, he had already been non-selected by the 1997 RCSB, and not eligible or entitled to a position vacancy promotion. .  The Board notes confusion between NGB officials and the TAG concerning the effect of the ROPMA legislation on promotion.  However, the ROPMA was made effective 1 October 1996, and shows position vacancy promotions are not permitted upon a non-selection by an RCSB, and that, by law, a CofE does not exclude individuals, as in this case, from RCSB consideration.

6.  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 RCSB, and to show promotion to colonel effective 12 March 1998 as he has requested.

7.  The Board notes the applicant’s erroneous promotion to colonel on 5 January 1998 to be effective 12 March 1998, and for which he received FR on 16 March 1998, was revoked.

8.  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.

9.  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	AR2000035242	
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.