APPLICANT REQUESTS:  That he be immediately promoted to the rank of colonel, that the effective date of his promotion be established as 13 July 1994, and that he be given the difference in pay as a result of that retroactive promotion.

APPLICANT STATES:  That he was selected for promotion to colonel by the October 1994 Standby Advisory Board (STAB) (a special promotion board which considers officers who were eligible for promotion but whose records were either not submitted to a regularly scheduled promotion selection board, or whose records contained a material error when reviewed by the selection board.  The STAB considers an officer under the promotion criteria for the year or years when the error or omission occurred.).  Despite his selection, the Office of the Chief, Army Reserve (OCAR) refused to promote him until he was considered, and selected, for a position by an Order of Merit Board (OMB) in 1996.  He charges that it is discriminatory and devalues the authority of this Board to deny or delay a promotion ordered by this Board by requiring the selected officer to also be selected by an Active Guard and Reserve (AGR) unique board before the promotion is effected.  He implies, in effect, that when an officer is selected by a STAB he or she should be retroactively promoted as if selected for a position in conjunction with that promotion, since that person could not have been considered for assignment to the higher position on the retroactive promotion date.

In support of his application he submits the response to a Congressional inquiry on his promotion by the OCAR.  In that response the OCAR stated that the applicant was notified by memorandum dated 5 March 1995 that he had been selected for promotion to colonel.  By that date the OMB had already adjourned, with the next OMB being convened in 1996.  The OCAR explained that the number of individuals selected for promotion to colonel far exceeds the available colonel positions in the AGR program.  Based on that excess, the CAR requires the OMB to convene to assist in making the assignments to these limited positions.

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

On 1 December 1985 the applicant entered on active duty in the AGR program in the rank of major, with assignment as the Chief, AGR Management Division at the U.S. Army Recruiting Command, Fort Sheridan, Illinois.  He remained in that position and was promoted to lieutenant colonel.  On 7 August 1989 he was transferred to the Full Time Support Management Center (FTSMC) and was assigned as the Chief, Administrative Support Division.

In response to a former request by the applicant, this Board directed that the applicant be considered by a STAB.  On 25 January 1995, based on the recommendation of the STAB, this Board recommended that the applicant be promoted to colonel under 1993 promotion criteria.  The recommendation was approved and the applicant’s promotion was directed.

On 18 April 1996 the Army Reserve Personnel Center (ARPERCEN) published orders reassigning the applicant to a position at the Soldier Support Institute at Fort Jackson, South Carolina, with a reporting date of 17 June 1996.

On 3 May 1996 orders were issued promoting the applicant to the rank of colonel effective the date of his assignment to a colonel’s position, 17 June 1996 (which was the date he received pay in the higher grade), with a date of rank (the date that his promotion eligibility to the next higher grade is calculated from) of 13 July 1994.

Army Regulation l35-l8 and National Guard Regulation 600-5 govern implementation of the AGR program.  Essentially, the program provides for selected Army Reserve (USAR) and ANG personnel to be voluntarily called to active duty for special projects, programs or mission essential tasks.  Periods of active duty may vary from l to 3 years, with provisions for voluntary extension of the period of active duty beyond the initial call.

Army Regulation 140-30, paragraph 7-1, states that officers in the AGR program may be selected for promotion regardless of his or her current position but will not be promoted until the officer is assigned to a position requiring the higher grade.

Army Regulation 135-155, paragraph 4-19, effective date, states that USAR unit officers who are selected for promotion by a mandatory board will be promoted on their promotion eligibility date provided they are assigned to a position vacancy in the higher grade.  If not assigned to a position in the higher grade, the officer may opt to transfer to a nonunit status (USAR Control Group) to accept the promotion.  Section IV of this regulation provides for officers to decline promotions for a period of time to retain unit membership if they are not assigned to a position of the higher grade.

In the processing of this case the staff of the Board found it necessary to contact the FTSMC for additional information.  The FTSMC stated that there were only a total of 142 colonel positions in the AGR program worldwide in 1995, with far more officers selected for promotion to colonel than the number of positions available, requiring an additional selection process to be conducted.  The number of positions is not discretionary as those positions are authorized by Congress.  In 1996 Congress authorized 18 more colonel positions in the AGR program.

Also obtained in the processing of this case was an advisory opinion from the OCAR.  The OCAR stated that the applicant has now been promoted, and that he could not have been promoted prior to his effective date of promotion since he did not occupy a position of the higher grade until that date.

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

1.  The Board notes that unit officers are subject to the same position requirements for acceptance of a promotion as AGR officers.  In instances where this Board directs the promotion of a unit officer, position vacancy requirements frequently delay that officer’s actual promotion.  As such, contrary to the applicant’s contentions, there is no evidence that he was the subject of discrimination or was singled out for any other form of treatment then is given to other officers.

2.  Since an AGR officer has no guarantee that a vacancy for the higher grade will exist at the time of promotion or, if a vacancy does exist, that he or she will be selected for that vacancy, the Board would be giving AGR officers who are selected by a STAB a benefit not afforded those officers who were properly selected by the regularly scheduled promotion board but who were not promoted (and paid) for the higher grade because of a lack of vacancies or because of their passover on selection for a vacancy.  In the applicant’s case, this is especially true in consideration of the lack of positions which existed at the time of his selection for promotion.

3.  It appears that the applicant’s contentions are more in keeping with a disagreement with the management system for the assignment and promotion of AGR officers than in claiming that he was the subject of a specific error or injustice.  

4.  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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director