MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 November 2000
	DOCKET NUMBER:   AR2000038551

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Meta Waller		Member	
	Ms. Terry L. Placek		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:  That the effective date of his promotion to the rank of major be corrected to 14 February 1992; that he be promoted to the rank of lieutenant colonel effective 14 February 1996, and to the rank of colonel effective 14 February 1998; that he be paid all back pay and allowances with monthly compounded interest.

APPLICANT STATES:  That National Guard Bureau (NGB) promotion practices from 1992 to 1998 were "capricious, inequitable, unjust, and did not consider Department of the Army (DA) Reserve Promotion Board selections."  He adds, in effect, that a 2 April 1999 NGB memorandum repudiated previous promotion policies.  He contends that he was "retroactively promoted [to major] as of 14 February 1992 by the [DA Reserve Promotion Board], the NGB did not permit me to process my promotion until October of 1998."  He adds that an action by this Board retroactively promoted him, causing him to be "Black Listed" by senior NGB officers.

In support of his application, he provides:  a copy of a 4-page chronology of his career, dated 21 February 2000; a copy of a 13 June 1995 memorandum from TAPC-MSL-N to the NGB, subject:  Eligibility for Promotion; a copy of ABCMR Proceedings AC92-09928A, dated 27 October 1993 (10 pages), a copy of a 3-page NGB memorandum to all AGR officers, dated 2 April 1999, subject:  FY99 AGR Assessment (Majors Only).

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

He was a captain in the United States Air Force Reserve when, on 20 February 1991, he received an appointment to the ARNG and an Active Guard Reserve (AGR) assignment to NGB Headquarters in Arlington, Virginia.  During the period 3 September 1991 to 13 February 1992, he attended the Quartermaster Officer Advanced Course at Fort Lee, Virginia.  He did not pass the course because he was determined to not be in compliance with weight control regulations.

Because he was not an Officer Advance Course graduate, the applicant did not meet the military educational requirements for promotion to the rank of major.  Accordingly, he was not selected for promotion by the appropriate fiscal years 1992 and 1993 promotion selection boards.  The applicant appealed to this Board seeking correction of his military records to show that he was a graduate of the Quartermaster Officer Advanced Course and promotion reconsideration.  He was initially denied, but on reconsideration, the Board granted his request on 27 October 1993.  Although the exact date cannot be verified in the record, it appears that the applicant was selected for promotion to major in June 1995.  His DA Form 2-1, Personnel Qualification Record, indicates that he was promoted to major with a date of rank of 26 October 1998.  He was honorably discharged for length of service on 29 November 1999 and placed on the Retired List on 30 November 1999.
In the processing of this case, an advisory opinion was obtained from the National Guard Bureau, dated 6 July 2000, which states that the applicant was selected for promotion to major by the Department of the Army Standby Board in 1995.  The opinion points out that such selection does not automatically mean that an ARNG officer will, in fact, be promoted; promotion is based upon a position being available in the desired grade.  It states that the applicant was promoted in October 1998, but that had he so desired, he could have been promoted with an effective date of 14 February 1992 if he had elected to leave the AGR program and transfer to the USAR.  The opinion adds that the applicant was never "Black Listed" by the NGB.  The applicant, provided an opportunity to respond to the advisory opinion, stated that all of the positions that he held during his AGR tour were "major" positions.  He adds that his AGR assignment provided his livelihood and there was no way he could have left that assignment to transfer to the USAR for promotion purposes.  Further, he states that his "search for another AGR position as a major . . . was fruitless" and adds that when he was so close to a 20-year retirement, he could not afford to leave active duty to gain promotion in the Reserves.  Finally, he contends that he was "Black Listed" by the NGB.

Army Regulation 135-155, Promotion of Commissioned Officers and Warrant Officers Other Than General Officers, prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States (ARNGUS).  This regulation also applies to commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR).  It states, in pertinent part, that promotion of AGR officer will be effective on their promotion eligibility date (PED) provided they are attached to a position in the higher grade.  An AGR officer who is not attached to a position in the higher grade will be promoted effective on the date of reattachment to a higher graded position or the day after release from AGR status.  The PED will then become the date of rank. 

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, 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.  The applicant's promotion to major was accomplished in accordance with applicable regulations.  Although selected for promotion in June 1995, he was not actually promoted until he was assigned to an O-4 position.  The applicant, in his rebuttal, stated that he was always in a "major" position during his AGR tour; however, he acknowledges that he conducted a "fruitless search" for an O-4 position, but could not find one and could not afford to give up his "livelihood" as an AGR officer in order to gain promotion in the USAR.

3.  Because the Board finds that the applicant's promotion to major was in accordance with existing policy and procedure and should not be backdated, his subsequent argument that he be promoted to lieutenant colonel and colonel is moot.

4.  The applicant provides no evidence of a "Black List" within the NGB, or that he was ever on such a list.  The NGB denies the existence of a "Black List."

5.  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

__slp____  __mw___  __tlp____  DENY APPLICATION

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

INDEX

CASE ID	AR2000038551	
SUFFIX		
RECON		
DATE BOARDED	20001114	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	131.0900	
2.		
3.		
4.		
5.		
6.