MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  19 December 2000
	DOCKET NUMBER:  AR2000041731

	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:

	Mr. James P. Huber		Chairperson	
	Mr. Kenneth L. Wright		Member	
	Mr. Raymond J. Wagner		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 colonel (pay grade 0-6) retroactive to 
30 July 1998.

APPLICANT STATES:  A duly constituted Federal Recognition Board (FRB) found him fully qualified for promotion, he received Senate confirmation for the promotion, and this was the last opportunity for unit vacancy promotion for officers under the ROPA (Reserve Officer Personnel Act) (sic).  He was erroneously considered for promotion by the 1998 mandatory promotion board and was non-selected, thus also erroneously denying him the unit vacancy promotion.  The promotion board erroneously determined he was not educationally eligible for promotion, and that this error was clearly an administrative error based on the lack of documentation in his official records, and which has since been corrected. His Senate Confirmation verified that he was not eligible for consideration by the 1998 mandatory board, and there is no section of law allowing the mandatory promotion board to overrule the consent of the Senate.  He states that Title 10, United States Code (USC), section 14301 c, specifies that a promotion board convened under section 14101(a) of this title may not consider for promotion an officer on a promotion list by an earlier selection board convened under that section or section 14502 of this title, or approved for Federal recognition and nominated by the President, if that promotion is pending before the Senate.  All of these errors are being unfairly and illegally used to deny his promotion.  He submits a memorandum to the Correction Board dated 8 May 2000, a legal opinion from an Army captain, Assistant Staff Judge Advocate dated 4 May 2000, two memorandums from a National Guard Bureau (NGB) Administrative Law Branch official dated 8 April and 9 July 1999, a copy of his FRB proceedings, and Senate Confirmation verification, in support of his application.

EVIDENCE OF RECORD:  The applicant's available Official Military Personnel File (OMPF) shows:

On 30 June 1997, while serving in the Virgin Islands Army National Guard (VIARNG) as a lieutenant colonel, Signal Corps, with a date of rank of 3 October 1986, he was recommended by The Adjutant General (TAG) for promotion to colonel.  The recommended position was Assistant Chief of Staff, Logistics and Services Officer.  He was then serving in an AGR (Active Guard/Reserve) tour status. He completed the Command and General Staff Officer Course (CGSOC) by correspondence on 13 July 1988.

On 7 July 1997, a FRB held in the VI determined the applicant qualified and recommended his promotion to colonel.  The FRB was not approved and Federal recognition was not extended for that purpose by the NGB.

Also on 7 July 1997, he was promoted to colonel by the VIARNG Headquarters by orders 42-1.  Additional instructions on the order stated “Insignia of new rank is not authorized to be worn until receipt of Federal Recognition orders.”  He was not in a colonel position.

On 15 July 1997, the applicant submitted a memorandum to the TAG accepting promotion to colonel and terminating his AGR status.  The TAG approved the applicant’s request.

On 23 July 1997, VIARNG officials requested by memorandum that the NGB extend the applicant Federal recognition for promotion to colonel, “ACOFS L&S OFFICER”.  The applicant remained in the AGR program.

The applicant was within the zone of consideration for consideration for promotion to colonel by the 1997 mandatory Reserve Components Selection Board (RCSB).  He was on the Active Reserve Status List for more than a year and met the maximum time in service for the higher grade (MTIG).  His consideration was mandated.

He was erroneously not considered for promotion to colonel by the mandatory 1997 RCSB.  Without Federal recognition he was not excused from consideration by the 1997 board.

On 19 March 1998, the Chief, Personnel Division, Army National Guard Directorate, NGB, requested Senate confirmation for the applicant for promotion to colonel.  She erroneously verified that the applicant was not within a zone of consideration for a mandatory promotion board, and has not failed of selection by a mandatory promotion board.  On 25 June 1998, Senate confirmation was completed.

On 29 June 1998 an official of the VIARNG deleted the applicant’s name from a list of officers to be considered by the 1998 RCSB.  He stated that the officer was scheduled to be granted Federal recognition by the NGB for promotion to colonel effective 7 July 1998.  Federal recognition was not granted.

On 30 July 1998, NGB officials approved a VIARNG request for a temporary “col/06 controlled grade.”

On 19 March 1999, an official of the ARNG Personnel Center notified the Reserve Promotion Branch (RPB) of the Total Army Personnel Command (PERSCOM) that there was no authorized position for the applicant’s promotion, and he did not meet the requirements for Federal recognition, having failed selection for promotion.  He also stated the VIARNG requested the applicant’s promotion package be returned because there was no valid position.

On 22 March 1999, the applicant was notified by an RPB official that his name would not be deleted from the results of the 1998 RCSB, in which he was not selected for promotion to colonel.  The official also stated the VIARNG should be advised to void the promotion order.

On 8 April 1999, an official of the Administrative Law Branch (ALB), NGB, expressed the opinion that the applicant is not eligible for a unit vacancy promotion because he is failed of selection as a result of the 1998 board.  He also stated the applicant was “eligible to request a special selection board for the 1997 mandatory board because of the administrative error which resulted in him not being considered by the board.”

On 9 July 1999, the ALB official advised the NGB Personnel Division by memorandum that the applicant did not resign his AGR status, that he was erroneously promoted by the State without an AGR controlled grade authorization, the unit vacancy should not have been initiated and the applicant should have been considered by the 1997 mandatory board.  Senate confirmation should not have been obtained on this basis.  The applicant was not selected by the 1998 RCSB, and having a Certificate of Eligibility (CofE) does not void a mandatory board non-selection.  Officers failed of selection are ineligible for a unit vacancy promotion.  Notwithstanding the Senate confirmation, the TAG’s withdrawal of the promotion action on the applicant was authorized since the decision to promote is a State decision. The ALB official also stated that “Because [the applicant] was not actually in a position calling for the higher grade, this action was tantamount to processing him for a certificate of eligibility”, and that “Having a certificate of eligibility does not avoid a mandatory board pass-over.”  He also stated, “there must be a valid vacancy in order to process a unit vacancy promotion.”

On 3 March 2000, the Chief, NGB Personnel Division, advised the TAG that his request to have the NGB immediately extend FR to the applicant for promotion to colonel could not be accomplished based on his failure of promotion.

On 4 May 2000, the VING Assistant Staff Judge Advocate expressed the opinion that the 1998 mandatory promotion board was not authorized to consider the applicant for promotion, and its actions with regard to him were invalid and have no legal effect, and the applicant’s state promotion was valid.

He was not selected for promotion to colonel by the 1992 through 1996 and 1998 through1999 mandatory RCSB’s.  The 1998 and 1999 non-selections show a lack of education as the reason for non-selection.  He was erroneously not considered by the 1997 RCSB.

His lieutenant colonel officer evaluation reports (OER’s) from 1 August 1991 through 30 November 1997 are contained on his OMPF microfiche, totaling seven OER’s within the VIARNG.  They show he was rated less than maximum by his rating officers on four of the reports, and maximum on the remaining three reports.  He was rated below the center of mass on three reports, and within the center of mass on three reports, with no senior rating on his last report.  His two senior raters were both in the position of the TAG.  The last OER, ending on 
30 November 1997, was completed by the TAG on 27 January 2000 and given to the applicant on that date.

On 18 July 2000 an official of the Total Army Personnel Command, Promotion and Notifications Branch, Reserve Components advised the analyst in this case that under the ROPMA, the applicant’s name was erroneously deleted from the 1997 RCSB based upon a request from the TAG’s office.  He is due consideration by a special selection board under 1997 promotion criteria.  He is not exempt or excused from consideration under 1997 criteria

The Reserve Officer Personnel Management Act (ROPMA) became effective for Reserve officers 1 October 1996.  The ROPMA replaced the ROPA.  Among other provisions, the ROPMA does not permit exclusion of consideration of lieutenant colonels by RCSB’s for promotion to colonel based on Senate confirmation 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 being in an RCSB zone or a non-selection by an RCSB, these officers must be placed in an authorized position, and promoted to receive Federal recognition from the NGB.  Only an officer who has been approved for Federal recognition may be excluded from mandatory promotion board consideration.

The provisions cited by the applicant, 10 USC 14301 (c) (1), indicating officers excluded from being considered by a mandatory ROPMA board, is an incomplete quote.  It provides that an officer whose name is on a promotion list by an earlier mandatory promotion board selection may not be considered by another mandatory board.  It also provides in 14301 (c) (2), that when approved for Federal recognition for a position vacancy promotion and nominated by the President, an initial RCSB consideration is not applicable and only then (the applicant) may be excluded from the RCSB consideration.  A previous RCSB consideration non-selection results in ineligibility for a position vacancy.

Current policies and procedures for promotion of Reserve officers provides that individuals will receive mandatory promotion consideration by an RCSB prior to their MTIG date 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.  This includes those in the zone of consideration but not yet considered.  FRB’s are not mandatory ROPMA promotion boards.

A CofE was issued to officers for whom there were no position vacancies and determined their fitness for future appointments or promotions, and may have been valid for up to 2 years.

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.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a board may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.  The regulation specifies that the CGSOC is required for promotion qualification for colonel.

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 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 was not extended Federal recognition for promotion to colonel.  He was not given the recognition required for promotion purposes because he did not occupy a valid position of colonel.  He was not treated unfairly.  For position vacancy promotion to colonel, all lieutenant colonels must occupy the higher position to receive Federal recognition for promotion.  He did not occupy a valid higher position and did not receive Federal recognition for promotion, and he was properly not promoted.

3.  The applicant was in the zone for mandatory promotion consideration by the 1997 board, but was erroneously not considered.  The evidence shows his name was erroneously removed from the 1997 consideration based on the State promotion, even though the promotion was not Federally recognized.  It is noted here that since he was erroneously not considered by this board, he is entitled to request reconsideration under this criteria.  He was not eligible or entitled to promotion based upon a position vacancy while having been in the zone for consideration by the mandatory board, and having been previously non-selected by a mandatory board.  He was also not later eligible or entitled to promotion since he was non-selected by the 1998 mandatory board.

4.  His contention concerning removal of his name from the 1998 mandatory board results is not substantiated.  He was a lieutenant colonel and in the zone of consideration and the consideration was mandated.  The results were non-selection.  It is noted here that since there was material error in his records at this board because his military education verification was erroneously not present and reviewed by the promotion board, he is entitled to request reconsideration under this criteria.  It is also noted here that this error also occurred during the 1999 consideration and he is also entitled to request reconsideration under the 1999 criteria.

5.  The applicant has apparently relied on a misinterpretation of the ROPMA as it applied to his promotion status.  He has also apparently relied on terminated legislation, the ROPA, which was replaced by ROPMA effective 1 October 1996. He erroneously understood that he was excused from promotion consideration in 1997 and that his name could be deleted from the 1998 non-selection, and that he could be promoted to colonel based on a State promotion with Senate Confirmation.  The applicant was not selected for promotion by any RCSB and was not eligible for a position vacancy promotion as he suggests.

6.  The board acknowledges the applicant’s contentions; however, they are not supported by his application or the evidence of record.  He was in the zone of consideration by each and every RCSB, from 1992 through 1999, based both on a fully or best qualified basis, but not selected.  He was clearly not eligible for a position vacancy promotion prior to or after the effective date of ROPMA.  He was not selected by a mandatory board and did not occupy a valid position, and not entitled to a CofE or promotion.
7.  The applicant was properly considered by the RCSB’s when he was not selected.  He could only have been promoted under position vacancy rules prior to reaching the promotion zone, including non-selection, if otherwise qualified, including placement in an available colonel position.  He was not excluded from consideration by any RCSB.  Under ROPMA, no lieutenant colonel in those circumstances was excluded.  The non-selections, including the non-consideration, in effect, closed the door for his promotion via CofE or position vacancy.  The Board notes that even under the now expired ROPA policy, a unit vacancy promotion could not follow an RCSB non-selection or erroneous non-consideration.

8.  The applicant’s required consideration for promotion by the 1997 mandatory board was not excused.  As provided for by statute, only an officer on a promotion list based on selection by a mandatory board may be excluded by a subsequent mandatory board.

9.  Under these circumstances, the Board concludes that the TAG could not have taken action to promote the applicant under ROPMA rules.  It is also noted that in 1999 NGB and RPB officials again found the applicant not entitled to promotion, and VIARNG officials requested the applicant’s promotion package be returned because there was no valid position.

10.  The evidence of record does not show that an authorized colonel position vacancy existed for the applicant at the time.  It has not been shown a position was available or that the applicant could have been placed in such a position prior to the 1997 RCSB zone and non-selection by the 1998 RCSB.  The applicant cites in error that he could have been promoted and he should not have then been considered by an RCSB.  He knew, or should have known, the meaning of the provision and that it did not pertain to his case.  It did not show that a FRB for a position vacancy excluded individuals from ROPMA RCSB consideration.  It provides that when approved for FR 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.  In the applicant’s case he was further ineligible for a position vacancy promotion at any time based on his previous promotion considerations and non-selections.

11.  Mandatory ROPMA RCSB consideration applies to all lieutenant colonels as in the applicant’s case.  The Board notes the applicant’s confusion over the new legislation, however, he has not satisfactorily shown error, injustice or inequity in his case.  The applicant has not convinced the Board that it was the fault of NGB officials that he did not receive a position vacancy promotion.  He has not shown he met all of the provisions for a position vacancy promotion, namely, an available colonel position and Federal recognition.  He also has not shown he was excused from the 1997 mandatory consideration.
12.  Based on the preceding, the applicant is not entitled to correction of his military records to show promotion to colonel, or to remove his name from the results of the RCSB’s.

13.  The Board further notes that the applicant may request promotion reconsideration under 1997, 1998 and 1999 criteria.  He was erroneously not considered by the 1997 board, and his records contained material error when reviewed by the 1998 and 1999 boards by erroneously not showing him educationally qualified.

14.  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.

NOTE:  The Reserve Promotion Branch, PERSCOM, will be requested to advise the applicant of his eligibility and entitlement, and required procedures, to receive reconsideration for promotion to colonel based on erroneous non-consideration and/or material error in his records at the time of previous promotion board reviews.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jh___  ___kw___  ___rw_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000041731	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001219	
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.