MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 August 2000
	DOCKET NUMBER:   AR2000037072

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons		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:  In effect, that his date of rank (DOR) to Major/0-4 (MAJ/0-4) be adjusted to 17 December 1997.

APPLICANT STATES:  In effect, that due to administrative errors his promotion packet was not processed to the National Guard Bureau (NGB) until after the 1998 Department of the Army (DA) Reserve Component (RC) MAJ/0-4 promotion selection board, which convened on 24 March 1998.  He claims that the State of Texas promoted him effective 17 December 1997 and they had from 17 December 1997 to 24 March 1998 to process his promotion packet for Federal Recognition.  He also claims that because of these administrative errors he lost 8 months of time in grade and the corresponding pay.  In addition, he indicates that because he is in an Active Guard/Reserve (AGR) status, he began receiving pay as a MAJ/0-4 and as a result of administrative errors this pay is now being recouped.  He believes the State had more than ample time to complete his Federal Recognition packet prior to the convening of the 1998 
DA RC MAJ/0-4 promotion selection board that convened on 24 March 1998 and that once this board convened his original unit vacancy promotion was frozen while he waited for the results of the board to be published.  He concludes that if his unit vacancy promotion and Federal recognition packet had been completed in a timely manner, it would have arrived at the NGB well before the 1998 DA RC MAJ/0-4 promotion selection board convened.   

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

He is currently serving as a MAJ/0-4 in the Army National Guard (ARNG) of Texas in an AGR status.  He was granted Federal Recognition as a MAJ/0-4 on 8 October 1998, which is also his DOR.

On 24 March 1998, Orders Number 083-679, issued by the Adjutant General’s Department of the Texas ARNG, promoted the applicant to MAJ/0-4 effective 
17 December 1997.  This order also indicated in special instructions that the applicant would not be paid as a MAJ/0-4 until Federal Recognition was confirmed.  Special Orders Number 179 AR, dated 8 October 1998, issued by the NGB, Washington D.C., announced the extension of Federal Recognition to the applicant as a MAJ/04, effective 8 October 1998.  

In connection with this case an advisory opinion was requested of and received from the NGB.  The NGB packet submitted to this Board included letters from the unit’s Operations Officer and from the Director of Military Personnel for the Texas ARNG.  The unit Operations Officer indicated that the applicant was promoted to MAJ/0-4 via State Orders with a promotion effective date of 17 December 1997, and that a valid authorized AGR position was available in the unit at the time.  He also stated that the failure to process the applicant’s Federal Recognition as a MAJ/0-4 in a timely manner was the result of administrative errors at the unit and he recommended the applicant’s DOR be adjusted accordingly.  

The Director of Military Personnel for the Texas ARNG indicated that the applicant’s position vacancy promotion packet was not completed and forwarded to the NGB prior to the 1998 DA RC MAJ/0-4 promotion selection board cut-off date due to administrative delays.  He also alluded to a records review showing that other officer’s records submitted for Federal Recognition in the same timeframe as the applicant’s State promotion showed that had it not been for the administrative errors the applicant would have been granted Federal Recognition on 16 February 1998.  Based on this, he recommended that the applicant’s DOR be adjusted to 16 February 1998, as opposed to the 17 December 1997 date the applicant requested.  

The Chief of NGB Personnel Division, after reviewing the input outlined in the preceding two paragraphs, opined that the applicant’s request should be denied. He indicated that NGB officials were unable to determine the specific nature of the administrative errors cited by the applicant in his request.  Further, it was stated that the record clearly established that the applicant was not granted Federal Recognition prior to the convening date of the 1998 DA RC MAJ/0-4 promotion selection board.  Therefore, the applicant was ineligible for a unit vacancy promotion and he had failed to provide evidence to support his claim that administrative errors occurred that delayed his promotion to MAJ/0-4.

On 14 July 2000, a copy of the NGB advisory opinion was furnished to the applicant in order to provide him an opportunity to respond to or rebut the NGB advisory opinion prior to the case being considered by this Board.  However, to date he has failed to respond.

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.  After a careful review of the evidence of record and the independent evidence submitted by the applicant, the Board is forced to concur with the opinion of the NGB.  The applicant has failed to provide sufficient proof that an administrative error caused the delay in his promotion and the Board agrees with the NGB that relief is not warranted in this case. 

2.  Although unit and State officials now support the applicant’s contention that an administrative error caused the delay in his Federal Recognition as a 
MAJ/0-4, it appears from the evidence of record that applicant’s 17 December 1997 promotion to MAJ/0-4 by the State was accomplished after the fact as a result of hindsight on the part of the unit and State officials.  

3.  There is no information in the available records that would suggest that it was the intent of the unit or the State to promote the applicant to MAJ/0-4 on 
17 December 1997 or that he was in fact promoted at that time.  The State Order authorizing the applicant’s promotion to MAJ/0-4 , effective 17 December 1997, was published on 24 March 1998.  This is the same date the 1998 DA RC MAJ/0-4 promotion selection board convened, and there is no evidence that shows that the applicant’s promotion took place or was even contemplated prior to that date.  

4.  Further, lacking evidence to the contrary, the Board finds it unreasonable to presume the applicant was actually promoted on 17 December 1997.  This conclusion is supported by the fact that the available evidence shows no effort on the part of the applicant, unit officials, or State officials to address the applicant’s Federal Recognition status prior to 24 March 1998, which is the date the 
1998 DA RC MAJ/0-4 promotion selection board convened.

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

___sw___  __lds ___  ___mm__  DENY APPLICATION

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

INDEX

CASE ID	AR2000037072	
SUFFIX		
RECON		
DATE BOARDED	2000/08/17	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.