MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 February 1999
         DOCKET NUMBER: AC94-11346/AR1997001072

         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. Loren G. Harrell		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Patrick Bogenberger		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Gary F. Geraets		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)

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APPLICANT REQUESTS: In effect, that his failure to be selected for continuation in the Active Guard Reserve (AGR) Program by the 23 January 1991 Continuation Selection Board be voided and that his records be corrected to show that he was selected and had been on continued active duty since that time; that his failure to be selected for promotion to Colonel, O-6 by the 21 July 1992 selection board be voided and his records corrected to show he was selected for promotion by that board; and that he be granted such other relief as may be deemed necessary.

APPLICANT STATES: The applicant defers to his counsel.

COUNSEL CONTENDS: That the applicant’s nonselection for continuation on active duty in the AGR Program by the Calendar Year (CY) 1991 AGR Continuation board was legally and materially in error and unjust in that the applicant was erroneously considered by that board; that that board was conducted in violation of governing regulation, since the membership did not include, to the extent possible, representation from the AGR Program and that he should have been continued on active duty without board consideration; that his nonselection for continuation was highly improbable in view of the fact that he was selected two weeks later by the 20 February 1991 AGR Assignment Advisory Board, using the same record; and that his nonselection for continuation on active duty precipitated his failure to be selected for promotion to Colonel, 0-6.

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

He was appointed a second lieutenant in the U. S. Army Reserve on 8 June 1968 and entered active duty on 11 September 1968. He was released from active duty on 24 September 1975, in the grade of Captain, 0-3, but continued in the active reserve. He is a Signal Corps officer.

On 18 July 1983, the applicant entered the AGR Program. He was selected for continuation in the AGR Program three years later, in 1986.

Five years later, in January 1991, the applicant was nonselected for continuation in the AGR Program. A total of 139 officers were considered by the CY 1991 AGR Continuation board. That board had an overall selection rate of 92 percent and a Signal Corps selection rate of 83 percent (5 of 6 officers selected). The Chief, Army Reserve (CAR) had appointed three U. S. Army Reserve colonels, one Regular Army colonel, and one U. S. Army Reserve major general (as president) as members of the board. Except for the president, who was identified as a Troop Program Unit (TPU) reserve officer, the affiliation of the other reserve officers was not identified. To determine whether a soldier was qualified to continue to serve in the U. S. Army Reserve AGR Program, the board was to satisfy itself that the soldier consistently demonstrated quality performance and Army Reserve proficiency.

The applicant’s officer evaluation report (OER) record during the period he was in the AGR Program is as follows: (NOTE: Part IV rates the officer’s professionalism in 14 categories with ratings from a high of “1” to a low of “5.” Part Vb rates the officer’s performance from a high of “Always Exceeded Requirements” (coded below as “Always”) through “Usually Exceed Requirements” (coded below as “Usually”) down to “Usually Failed Requirements.” Part Vd rates the officer’s potential from a high of “Promote Ahead Of Contemporaries” (coded below as “Ahead”) through to “Promote With Contemporaries” (coded below as “With”) down to “Do Not Promote.” The asterisk in the Senior Rater’s block indicates applicant’s rating.)

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*
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 in the OER for the period 851001 – 860112 were in the categories “Demonstrates appropriate knowledge and expertise in assigned tasks” and “Is adaptable to changing situations.” The two 2s in the OER for the period 880606 – 890605 were in the categories “Performs under physical and mental stress” and “Displays sound judgment.”

On 20 February 1991, an AGR Assignment Advisory Board (AAB) convened. This board was to advise 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. This is needed basically because there are often more officers selected for promotion than there are authorized positions in the higher grade in the AGR Program. The board considered non-promotable lieutenant colonels and promotable majors, (less those who were within two years of retirement or their mandatory removal date). It is not known how many officers were considered. The recommendations were advisory only. An order of merit list would be prepared. The applicant was notified that the AAB placed him in the middle third of its order of merit list.

The applicant was released from the AGR Program and active duty on 31 July 1991. At the time of his application he was still serving in the U. S. Army Reserve as an Individual Mobilization Augmentee (IMA).

In August 1991, the applicant requested that the CAR disapprove the results of the Continuation Board as pertained to himself.

In 1992, 1993, 1994 and presumably to the present, the applicant was nonselected for promotion to Colonel, 0-6, U. S. Army Reserve.

By a memorandum dated 13 March 1992, the Deputy Chief, Army Reserve advised the applicant that his request to disapprove the Continuation Board results was denied.

Army Regulation 135-18 establishes policies and prescribes procedures for obtaining, administering and separating reserve component members serving as members of the AGR Program. Paragraph 4-11 states that boards will be convened at least annually by National Guard Bureau (NGB) and 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 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 may be convened as required. AGR soldiers who are not disqualified per 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 prescribes policy and procedures for selecting, assigning, managing and administering U. S Army Reserve 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. 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. Personnel will be offered another tour of duty without board action on the expiration of their current tour unless 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 noncontinuation 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 Generals’ 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.

In the processing of this case, advisory opinions (SEE ATTACHED) were obtained from the OCAR and the U. S. Total Army Personnel Command. Counsel responded in each instance (SEE ATTACHED).

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:

2. The applicant’s consideration by the CY 1991 Continuation Board was a routine evaluation. He was accessed into the AGR Program in 1983. Paragraph 3-6 of Army Regulation 140-30 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 (he was selected for continuation in 1986) and at 5-year intervals beyond that (he was nonselected for continuation in 1991).

3. Counsel cites the language in paragraph 3-6i, Army Regulation 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. Yet one of the conditions is “(b) They were considered for continuation during their current tour and were not recommended for continuation.” This disqualifying condition clearly does apply to the applicant.

4. Counsel states that the continuation board was conducted in violation of governing regulation since the membership did not include, to the extent possible, representation from the AGR Program. He provides no evidence to cast reasonable doubt on the “to the extent possible” qualifying statement. The regulation also does not prohibit AMEDD, JAGC or chaplain officers from being voting board members.

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5. 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. Yet, as he just quoted, the applicant did not satisfy board considerations.

6. The continuation board, in determining whether a soldier was qualified to continue to serve in the AGR Program, must have satisfied itself that the soldier consistently demonstrated quality performance and Army Reserve proficiency.
This Board has noted the applicant’s OERs received during the period he was on active duty in the AGR Program. In an era of downsizing, which was underway at the time of the CY 1991 Continuation Board, the Army has no choice except to retain only the best soldiers, whether they be in the active Army or in the reserve components, whether officer or enlisted. The Board does not believe that the applicant’s OERs demonstrate that clear record of consistent quality performance that the Continuation Board was instructed to look for.

7. This Board recognizes that the AAB placed the applicant in the middle third of its order of merit list only two weeks after the continuation board nonselected him for continued active duty. However, it is not known how large the population was that the AAB looked at but it is known that the AAB was not directed to determine if an individual was qualified for retention. The two boards had two different purposes and so this Board does not believe they can or should be compared.

8. This Board does not believe that the applicant’s failure of selection for promotion to Colonel, 0-6 was precipitated by his nonselection for continuation in the AGR program. The Board has noted the applicant’s OERs subsequent to his release from the AGR Program (14 1s, “Always exceeded requirements” and “Promote ahead of contemporaries” with 2-block senior ratings but no senior rater profile available). However, the Board has also noted the two OERs for the periods ending 820601 (9 2s and 5 1s, “Usually exceeded requirements” and “Promote with contemporaries” with a senior rating of 0/4/4/3/1*) and ending 830601 (4 2s and 10 1s, “Usually exceeded requirements” and “Promote with contemporaries” with a senior rating of 0/4/4/6*/2). This Board does not believe an injustice occurred when he was nonselected for promotion.

9. In view of the foregoing, there is no basis for granting the applicant's request.

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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

__PB____ __EJA___ __GFG___ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC94-11346/AR1997001072
SUFFIX
RECON
DATE BOARDED	19990210
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.