MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  15 March 2001
	DOCKET NUMBER:  AR2000042265

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Richard T. Dunbar		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 failure to be selected for continuation in the Active Guard Reserve (AGR) Program by the 23 January 1991 USAR AGR Program Accession and Continuation Selection Board be voided and expunged from his records; that his records be corrected to show that he was selected and continued on AGR active duty from 30 July 1991 through 
31 January 1996; that his non-selection for promotion to Colonel by the 21 July 1992, 20 July 1993, 19 July 1994, and 18 July 1995 promotion selection boards be voided and expunged from his records; that the records be corrected to show he was selected for promotion by the 21 July 1992 promotion selection board; and that he be granted such other relief as may be deemed necessary to include payment of any monies due as a result of these corrections.  He also requests a de novo review of his application since the constitution of the original Board members could possibly give the appearance of conflict of interest.

APPLICANT STATES:  The applicant defers to his counsel.

COUNSEL CONTENDS:

That the applicant’s non-selection for continuation on active duty in the AGR Program by the Calendar Year (CY) 1991 USAR AGR Program Accession and Continuation Board was legally and materially in error and unjust in that the applicant was erroneously considered by that board since the governing regulation, Army Regulation (AR) 140-30, paragraph 3-6i(1), provides that “officers who have been recommended for continuation by a board action during their initial tour and are serving on a subsequent tour of duty (as was the applicant) … will be offered another tour of duty without board action on the expiration of their current tour … unless one of the specified (disqualifying ) conditions exits.”  None of the conditions applied to the applicant.  Counsel contends that the applicant should have been continued on AGR active duty without board consideration.

That the Continuation Board was conducted in violation of the governing regulation, AR 140-30, paragraph 3-7a(3), in that board membership did not include, to the extent possible, representation from the AGR Program.  Counsel further contends that inclusion of a Judge Advocate General Corps (JAGC) AGR officer in the board membership is in violation of AR 140-30, paragraph 3-7b(4), which states, “When considering [AMEDD, JAGC or chaplain] officers, officer boards will include an AMEDD, JAGC, or chaplain members as appropriate”.  Counsel contends that this passage implies that JAGC officers would not serve on a continuation board, as occurred in this case, unless JAGC officers were being considered by the continuation board.  The inclusion of a JAGC officer on the board would therefore make the board null and void.

That the Continuation Board was also conducted in violation of the governing regulation, AR 135-18, paragraph 4-11b, which provides that “AGR soldiers (like the applicant) who are not disqualified per table 2-5 (of AR 135-18), and satisfy board consideration required by … OCAR will be continued.”

That the applicant’s nonselection for continuation by the Continuation Board on a fully qualified basis was highly improbable in view of the fact that he was selected two weeks later on a best qualified basis by the 20 February 1991 AGR Assignment Advisory Board (AAB), using the same record, placed him in the middle third of its order of merit list.  While the Continuation Board placed the applicant in the bottom 17 percent (bottom 1 out of 6) of AGR Signal Corps officers and the bottom 8 percent (bottom 11 out of 139) of the 139 LTC’s considered by the board, the AAB placed him between the bottom 
33 to 66 percent of all AGR LTC’s.

That his nonselection for continuation on active duty precipitated his failure to be selected for promotion to Colonel, USAR.

That the panel of board members were improperly constituted for the initial Army Board for Correction of Military Records (ABCMR) review conducted on 
10 February 1999, due to a potential conflict of interest.  A member of the Board worked in the offices of the Chief, Army Reserve, when actions and decisions under review in this case were taken.  The Board member was also in the same current organization as the Board President which could be viewed as an inappropriate supervisory relationship of the Board member.  The counsel provides copies of Department of the Army directories as evidence of the possible inappropriate inclusion of this individual in the constitution of the Board.

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

He was appointed a Second Lieutenant in the USAR on 8 June 1968 and entered active duty on 11 September 1968.  He was released from active duty 
on 24 September 1975, as a Captain, and transferred to the Individual Ready Reserve (IRR).  Between 25 September 1975 and 17 July 1983, he served at intervals in the IRR and Troop Program Units (TPU).  He is a Signal Corps officer.  He was promoted to Major on 3 June 1981.

On 18 July 1983, the applicant entered the AGR Program.  Three years later, in 1986, his service in the AGR was approved for continuation.  He was promoted to the rank of Lieutenant Colonel (LTC) on 6 June 1988.  In 1989, he earned a Masters Degree in Management Information Systems.

On 23 January 1991, the applicant was not selected for continuation in the AGR Program by the Calendar Year (CY) 1991 USAR AGR Program Accession and Continuation Selection Board.  The Continuation Board reviews AGR officers for continuation in the AGR program three years after entry into the program and every five years thereafter.  The board members consisted of three USAR Colonels, one Regular Army Colonel, and one USAR Major General as president, appointed by the Chief, Army Reserve (CAR).  One of the USAR Colonels was an AGR officer.  To determine whether a soldier was qualified to continue to serve in the USAR AGR program, the board was instructed to satisfy itself that the soldier consistently demonstrated quality performance and Army Reserve proficiency; is qualified physically, morally, and professionally.  The method of selection was the “fully qualified” method.

The Continuation Board’s recommendation was based on an evaluation of the performance section of the Official Military Personnel File (OMPF) to include Officer Evaluation Reports, commendatory data, and disciplinary data from the applicant’s entire career.  The applicant’s Officer Record Brief (ORB) and his official photograph were also considered.  A total of 139 officers were considered by that board.  The board had an overall selection rate of 92 percent.  The applicant was 1 of 11 LTC AGR officers not selected for continuation.  The applicant was the only one of 6 AGR Signal Corp officers considered by the board who was not selected for continuation.  The AGR Signal Corp officer selection rate was 83 percent.

The applicant’s Officer Evaluation Report (OER) record during the period he was in the AGR Program is indicated in the following table.  The OER, Part IV, rates the officer’s professionalism in 14 categories with ratings from a high of “1” to a low of “5.”  Part Vb, in pertinent part, rates the officer’s performance at the top with “Always Exceeded Requirements” (coded below as “Always”), and at second best with “Usually Exceed Requirements” (coded below as “Usually”).  Part Vd rates the officer’s potential at the top with “Promote Ahead Of Contemporaries” (coded below as “Ahead”), and at second best with “Promote With Contemporaries” (coded below as “With”)”  The asterisk in the Senior Rater’s Block column in the table indicates applicant’s rating among other officers of the same rank rated by the Senior Rater.

Period			 Part IV	Part Vb	Part Vd	Senior Rater Block

830718 – 840717      14 1s		Always	Ahead		2/9/20*/10/1
840718 – 850717	  14 1s	Always	Ahead		4/12/28*/16/1
850718 – 850930	  14 1s	Always	With		6/13/31*/16/1
851001 – 860112	  12 1s/2 2s	Usually	With		6/17/38*/16/1
860113 – 870112	  14 1s	Always	Ahead		1/1*

(table continued on next page)
(table continued)
(Period		 Part IV	Part Vb	Part Vd	Senior Rater Block)

870112 – 870724	  14 1s	Always	Ahead		2*/3
870725 – 880605	  14 1s	Always	Ahead		1*/1
880606 – 890605	  12 1s/2 2s	Always	Ahead		2/6*/0/1
890606 – 900605	  14 1s	Always	Ahead		0/1*
900606 – 910605	  14 1s	Always	Ahead		6*/13/2/1

The two 2s on the OER, Part IV, for the period 851001 – 860112 were in the professional competency categories, “Demonstrates appropriate knowledge and expertise in assigned tasks” and “Is adaptable to changing situations.”  The two 2s on the OER, Part IV, for the period 880606 – 890605 were in the categories, “Performs under physical and mental stress” and “Displays sound judgment.”  
It is also noted that, according to the applicant, he received a Relief for Cause OER while on active duty as a company commander, for the period 
15 January 1973 to 20 August 1973, under extenuating circumstances.

On 20 February 1991, another board, the AGR Assignment Advisory Board (AAB) convened.  The AAB advises the CAR as to the relative fitness, qualifications, demonstrated manner of performance and potential of AGR officers for the purposes of assignment/reassignment within the AGR Program.  The AAB is a management tool for the selection of an AGR officer to fill a vacancy only when there are two or more officers who meet all of the qualifications for an available position vacancy.  The AAB considered Lieutenant Colonels and promotable Majors, (except those who were within two years of retirement or their mandatory removal date).  The recommendations of the AAB were advisory only and in the form of an order of merit list based on the “best qualified” selection method.  The applicant was notified by letter that the AAB placed him in the middle third of its order of merit list.  No records are available to the Army Board for Correction of Military Records (ABCMR) on the number of officers considered or their order of merit.

The applicant was released from the AGR Program and active duty on 
31 July 1991 and transferred to the IRR.  In August 1991, the applicant requested, by letter, that the CAR disapprove the results of the AGR Continuation Board which denied him continuation in the AGR Program.  By a memorandum dated 13 March 1992, the Deputy CAR informed the applicant that his request for disapproval of the results of the AGR Continuation Board was denied.

The applicant transferred from the IRR to an Individual Mobilization Augmentee (IMA) position in the Reserve in 1992.  In the 1992, 1993, 1994, and 1995 promotion boards, the applicant was not selected for promotion to Colonel, USAR.  He transferred to the Retired Reserve on 8 April 1996.  On 20 April 1989, he received a 20 Year Letter, notification of eligibility for retired pay at age 60.

Army Regulation 135-18 (The Active Guard Reserve [AGR] Program), establishes policies and prescribes procedures for obtaining, administering, and separating Reserve component members serving in the AGR Program.  Paragraph 4-11 states that boards will be convened at least annually by the National Guard Bureau (NGB) and the Office, Chief Army Reserve (OCAR) to consider personnel in the third year of their initial tour of duty, and every fifth year thereafter, for continuation in the AGR Program.  NGB and OCAR will publish instructions covering the conduct of the boards.  Other boards my be convened, such as the AGR Assignment Advisory Board, which are designed to select the best qualified soldiers in specific grades for subsequent assignments in a reduced number of continuing assignments in the same or higher grade.  AGR soldiers who are not disqualified according to table 2-5, and satisfy board considerations required by NGB or OCAR will be continued on active duty if an appropriate assignment is available.  Soldiers who are not recommended for continuation by a Continuation Board will be released from active duty according to the applicable regulations.

Army Regulation 140-30 (Active Duty Support of the United States Army Reserve [USAR] and Active Guard Reserve [AGR] Management Program), effective 
1 July 1990 during the time of the applicant’s continuation board, prescribes policy and procedures for selecting, assigning, managing, and administering USAR soldiers on active duty in the AGR Program.  Paragraph 3-6 states that the CAR will convene a continuation board to review the records of AGR members for continuation beyond the initial 3-year tour in the AGR Program and at 5-year intervals beyond that.  The soldier will be considered by a board convening the third calendar year following the calendar year in which the soldier was accessed into the program, and again during each subsequent fifth calendar year.  Paragraph 3-6b states that continuation boards will evaluate the soldier’s quality of performance and potential for future AGR service to determine whether the member should be continued in the AGR Program.  Paragraph 3-6i states that officers who have been recommended for continuation by a board action during their initial tour and are serving on a subsequent tour of duty will be offered another tour of duty without a break in service and without board action on the expiration of their current tour unless one of the specified conditions exist. One such condition is paragraph 3-6I(1)(b), “they were considered for continuation during their current tour and were not recommended for continuation.”  Individuals will be allowed 90 days from date of notification of non-continuation until actual release date.

Army Regulation 140-30, paragraph 3-7, states that the CAR will convene DA accession and continuation boards.  At a minimum, DA boards will be composed as follows: at least three appointed voting members, senior to all soldiers being considered; each board will have one nonvoting recorder; to the extent possible, the board will include representation from the AGR Program, the Active Army and the Selected Reserve.  More than half of the members will be members of the U. S. Army Reserve; when considering Army Medical Department (AMEDD), Judge Advocate General’s Corps (JAGC) or chaplain officers, officer boards will include an AMEDD, JAGC or chaplain member as appropriate; boards will be composed according to the HQDA Affirmative Action Plan; and no member may serve on two successive boards considering members of the same grade for the same purpose.

The Director of the Full Time Support Management Center (FTSMC), Office of the Chief of the Army Reserve (OCAR) provided an advisory opinion on 
2 August 1994 that the applicant’s request be denied.  He reviewed the applicable regulations and the applicant’s and counsel’s contentions in detail 
and found no error or injustice. He noted that the applicant had presented 
no evidence of material error in the decision of the Continuation Board.  
The applicant’s counsel rebutted this opinion refuting the advisory’s application 
of the regulations and interpretation of the issues.  The counsel contended for 
the most part that the differing results of the Continuation Board and the AAB constituted material error.

Material Error is defined as being of such a nature that, in the judgement of the reviewing official, had it been corrected at the time the soldier was considered by the continuation board that failed to recommend him or her for continuation in the AGR program, it would have more likely than not resulted in the soldier being recommended for continuation.  (AR 140-30, paragraph 3-7g(2)(a.2); and Reserve Components Personnel Update Issue 22, 1 June 1990, Glossary.)

The Director, FTMSC, OCAR, provided an advisory opinion on 4 May 1995 in response to an amended request by the applicant dated 26 January 1995.  
The amended request included the applicant’s OERs from the periods of service following his release from the AGR program.  The Director affirmed his opinion  of 2 August 1994 without change.  He recommended denial of the applicant’s request.  He stated that the applicant’s OERs from the periods of service following his release from the AGR program did not constitute material error in the Continuation Board’s decision.  The counsel rebutted the opinion and stated that the OERs were intended to show the applicant’s continued quality of performance of his duty and his potential since his release from the AGR program and hence, the materiality of the error and injustice of the applicant’s nonselection for continuation.  The counsel again refuted the accuracy and validity of the advisory opinions.

The Chief, Promotion and Notification Branch, Office of Promotions, Reserve Components, the U. S. Total Army Personnel Command (PERSCOM), provided an advisory opinion on 13 June 1995 that the promotion boards for the rank of Colonel in 1992, 1993, and 1994 considered the applicant’s OERs, military and civilian education data, and military decoration and awards; and that the promotion boards were correctly and properly conducted.  She found no basis for consideration of the applicant’s request by a DA Promotion Advisory Board and recommended that the applicant’s request for promotion to Colonel be denied.  The counsel rebutted the opinion stating that the lack of merit and error of the opinion is conclusively proven by it not addressing that applicant’s contention 
that he was not selected for promotion because of unjust nonselection for continuation on AGR tour.  He reaffirmed the applicant’s contention on this point and concluded that he should be promoted to Colonel.

The Chief, Personnel Division, OCAR, provided an advisory opinion in response to a 24 October 1996 request from this Board.  One question asked by this Board was, “Was the only basis for reconsideration of the applicant’s case by another Continuation Board evidence of a material error or were cases with merit also returned for reconsideration (especially true in this case in view of his command’s endorsement of his request for reconsideration).”  In reply, the opinion was given that, “Substantial evidence of a material error is the sole basis for reconsideration (by the Continuation Board).”  The advisory opinion also stated in pertinent part that: 1) in essence, the boards were properly conducted in accordance with 
AR 140-30 and 135-18; 2) the AR 140-30 takes precedence in the operation of the boards; 3) the two boards in question operate under different guidelines, and consider different populations, for different purposes; 4) that the two boards are different and their results are different which cannot be compared; 5) that the JAGC AGR officer is competent to sit on a Continuation Board; 6) that the applicant was properly considered by the 5-year interval Continuation Board and not selected in accordance with AR 140-30, paragraph 3-6; 7) the applicant was properly continued on AGR duty according to AR 135-18, paragraph 4-11b and Table 2-5, until in accordance with this reference, he was not selected for continued AGR duty by a properly constituted board, as stated in AR 140-30, paragraph 3-6i(1)(b).

The counsel rebutted refuting the advisory opinion in detail stating in pertinent part that: 1) the advisory did not address the Board’s advisory request statement that the applicant’s case had merit nor did the Board address the merit issue in its proceedings; 2) the Continuation Board was conducted in violation of the provisions of AR 140-30 and AR 135-18; 3) the AAB, which found the applicant 
in the middle third of his peers on the order of merit list, could have served the purpose for determining continuation in the AGR program instead of the Continuation Board; 4) portions of the instructions to the AAB and the 

Continuation Board were identical; 5) the two boards did consider some of the same people and not entirely different populations; 6) the applicant was released from AGR tour in violation of paragraph 4-11b and table 2-5, AR 135-18.  The counsel contended that the OCAR advisory opinion is wholly in error and without merit, and as such, it should be rejected by the Board and the applicant’s request should be granted.

The applicant had originally applied to the ABCMR for redress of these contended injustices on 31 October 1991.  After the foregoing lengthy exchange of advisory opinions and rebuttals, the application for correction was reviewed by the ABCMR on 10 February 1999.  A copy of the proceedings were provided to the applicant.  The applicant and counsel requested a de novo review of an amended application on 15 May 2000.  The de novo review request was based on perceived improper constitution of the Board.  A member of the Board had served in the offices of OCAR when events occurred, and when decisions and opinions had been rendered in this case, raising the question of conflict of interest.  The member also served in the same organization as the Board President which could raise the question of inappropriate supervisory influence of the Board member.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinions, it is concluded:

1.  The applicant was properly considered by the CY 1991 USAR AGR Program Accession and Continuation Board according to the governing regulation, 
AR 140-30.  Paragraph 3-6 states that the CAR will convene a Continuation Board to review the records of AGR members for continuation on AGR tour beyond the initial 3-year tour in the AGR Program and at 5-year intervals beyond that.  He was accessed into the AGR program in 1983 on the best qualified basis, was selected by the Continuation Board for a second AGR tour in 1986 on a fully qualified basis as a MAJ, continued on a third AGR tour in 1989 without a board required, and was nonselected for continuation by the Continuation Board in 1991 during his third AGR tour on a not fully qualified basis as a LTC with approximately three years time in grade.  While his OERs during these three years were two center-of-mass reports and one above center-of-mass report, he did have two 2s in professional competence, which is a considerable detractor for a LTC.  The Continuation Board also looked at his entire OER record and military record at a LTC level.  While previous reviews had been at the MAJ level and the entire record appears to have been acceptable at that level, it is apparent from the Continuation Board’s decision, that the entire record was not acceptable at the LTC level for continued AGR duty.

2.  The counsel cites the language in paragraph 3-6i, AR 140-30, as incontrovertible evidence that the applicant’s nonselection by the Continuation Board was in error, stating that none of the disqualifying conditions indicated apply to the applicant.  To the contrary, one of the disqualifying conditions is, 
“(b)  They were considered for continuation during their current tour and were not recommended for continuation.”  This condition does apply to the applicant and disqualifies him from further service in the AGR Program.  Based on instructions given the Continuation Board, and based on the applicant’s entire record, as the board was instructed to review, the CY 91 Continuation Board did not find the applicant fully qualified for continued AGR duty.  The Continuation Board, or any other such board, never discloses any individual information on the reasons for nonselection.  It is up to the applicant and his career manager to review his entire record and make their own analysis based on the instructions given to the board.

3.  The counsel states that the Continuation Board was conducted in violation of the governing regulation since the membership did not include, to the extent possible, representation from the AGR Program.  A JAGC AGR Colonel was a member of the Continuation Board.  Counsel makes an incorrect assumption, unsupported by regulation, that a JAGC officer cannot be a member of a Continuation Board unless JAGC officers are being considered by the board and that if a JAGC officer is otherwise a member of the board, that membership invalidates the board.  The regulation does not prohibit AMEDD, JAGC, or chaplain officers from being voting members of any Continuation Board.

4.  Counsel cites the language, “AGR soldiers who are not disqualified per table 2-5, and satisfy board considerations required by…OCAR will be continued,” 
in paragraph 4-11b, Army Regulation 135-18, as evidence that the applicant’s nonselection by the continuation board was in error.  There was no error.  The applicant was continued on AGR duty for his third 3 year AGR tour without board action according to the reference and according to paragraph 3-6i(1), 
AR 140-30.  However, during his third 3 year tour, the Continuation Board 
meet to evaluate him at the 5 year intervals required by both AR 135-18 and 
AR 140-30.  He was not selected for continuation and was released from his AGR duty in accordance with paragraph 4-11b(1), AR 135-18, which governs the use of table of 2-5, and paragraph 3-6i(1)(b), AR 140-30.

5.  This Board recognizes that the AAB placed the applicant in the middle third of its order of merit list using the “best qualified method”, only two weeks after the Continuation Board nonselected him for continued AGR duty using the “fully qualified method.”  The AAB’s best qualified method does not make or portend any judgement on the fully qualified status of the officers considered, it simply ranks the population reviewed from best to least qualified.  The population of officers considered by the AAB was all AGR LTC and promotable Majors.  The 

population of officers considered by the Continuation Board was only a small percentage of all of the AGR LTC and promotable MAJ officer population.  By the rules of statistical analysis, the rank order of an officer in these two populations is not comparable and cannot be used to invalidate one or the other board since the population sizes are significantly different and since their rank order is based on different methods.  Since the two boards used different selection methods, had different purposes, and had different populations, they cannot be compared and used to prove error or injustice in each other.

6.  There is no evidence the applicant’s failure to be selected for promotion to Colonel was precipitated by his nonselection for continuation in the AGR program.  Promotion boards are allowed to see only the officer’s performance record (OERs, awards and decorations, commendations, education documents, disciplinary or adverse actions), the Officer Record Brief (ORB), and his photo.  These records do not show that the applicant was not selected for continuation of an AGR tour.  Nonselection for continuation on AGR tour is not an adverse action.  Promotion boards are not given any of the administrative section of the record that might show such nonselection information.  There is no evidence of any injustice in the promotion selection process.

7.  In consideration of the possible appearance of improper constitution of the Board in review of the applicant’s application on 10 February 1999, the applicant’s application is hereby reviewed de novo by a new Board who is not given access to the initial ABCMR proceedings or decision in this case.

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

__ew____  ___to___  ___rd___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042265	
SUFFIX		
RECON		
DATE BOARDED	20010315	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	110.03	
3.		
4.		
5.		
6.