MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 June 2003
         DOCKET NUMBER: AR2002076053

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Ms. Karen A. Heinz		Member
Mr. Thomas B. Redfern		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: That he be reinstated into the Army National Guard (ARNG) in the rank and grade of Master Sergeant (MSG), E-8 or, in the alternative, that his records be corrected to show he was a MSG at the time he was placed in the Retired Reserve.

APPLICANT STATES: That he was in line for promotion to E-8 in the New York ARNG (NYARNG) when his employer relocated him to Colorado. He found a unit, the 220th Military Police Company, in the Colorado ARNG (COARNG). He arrived in Colorado on 1 April 1996 and attended his first drill with the COARNG in mid-April 1996. He soon learned that the unit had two E-8 slots open but no one presently on the entire State order of merit list (OML) was qualified to fill the slots. He was fully qualified, but, being a new arrival, was not carried on the OML. He was informed the State only updated the list in January of each year, 8 months in the future. In December 1996, he spoke with the First Sergeant, who told him that he (the First Sergeant) fully expected the applicant to top the OML the following month, in which case the applicant would be promoted automatically.

The applicant states that, as he had completed 20 qualifying years of service, he was subject to an annual retention review by the State Qualitative Retention Board (QRB). He reviewed his 201 file at the January 1997 drill. Then he was asked to sign a statement that he had read the commander's letter of recommendation to the QRB and that he had no issues with its content. He was informed, however, that the letter had not yet been typed. He was verbally assured by the unit administrative noncommissioned officer, not by the commander, that the letter would contain nothing unfavorable. He was still new to the unit and still working to establish himself as a reliable team player. He knew that to insist that he see the commander's signed letter would imply distrust and undermine 8 months of work and alienate the chain of command. Although he felt the procedure improper, he considered his desire to become an accepted member of the unit and, against his technical right to demand to see the letter, he signed the form.

The applicant states that, when he arrived at the drill weekend the following month, the commander and First Sergeant told him that he was at the top of the OML list and should soon be promoted to the open E-8 operations sergeant position. He was then informed that the QRB had reviewed his record and the commander's recommendation and elected to discharge him immediately. Instead of being promoted, he was to be involuntarily retired. He checked the OML and was intrigued to note that the second person qualified to fill the E-8 slot was a long-time member of the unit. With the applicant's discharge, that person was promoted over the applicant.

The applicant states that many of his fellow soldiers, especially members of his platoon, were outraged when told the applicant was leaving. He appealed the decision of the QRB. His platoon leader and two of his noncommissioned officers submitted letters in support of his retention. Several members of his platoon phoned the State Inspector General to file complaints. Still, his appeal was denied and he was discharged in March 1997. He later wrote the Governor of Colorado. He received a letter back from the State Adjutant General, who indicated that the applicant's commander had recommended his retention but only after making [adverse] statements about his demonstrated leadership. That was untrue and there was no record of performance counseling by his superiors during the 8 months he was assigned. The promotion system is designed with the intention of minimizing favoritism at the unit level and to promote those best qualified. He feels he was the victim of a circumvention of the promotion system.

The applicant provides a 1 December 1996 memorandum from the Commander, 220th Military Police Company to the Colorado Adjutant General, Subject: Qualitative Retention Board Recommendation for Retention; a 31 January 1997 memorandum from the Colorado Adjutant General to the applicant informing him he had been nonselected for continued unit participation; the applicant's 8 February 1997 appeal of the nonselection; a letter of support to his appeal dated 8 February 1997 from the applicant's platoon leader; a letter of support to his appeal dated 10 February 1997 from a sergeant, E-5 in his platoon; a 19 February 1997 memorandum from the State Adjutant General informing the applicant his appeal was denied; an undated letter from the applicant to the Governor of Colorado; a 16 March 1998 handwritten note from the State Adjutant General to the applicant in reply to the applicant's letter to the Governor; and the orders discharging him from the ARNG and transferring him to the Retired Reserve as supporting evidence.

EVIDENCE OF RECORD: The applicant's ARNG records are not available. Information contained herein was obtained from alternate sources.

After having had almost 7 years of prior active duty, the applicant apparently enlisted in the NYARNG in 1982. He apparently transferred to the COARNG in April 1996.

By memorandum dated 1 December 1996, the applicant's commander recommended his retention in the COARNG. His commander stated the applicant was extremely knowledgeable and consistently demonstrated technical and tactical proficiency. His commander stated that the applicant's leadership skills needed some enhancement and that some personal problems interfered with his performance. His commander recommended the applicant be retained and given the opportunity to demonstrate his leadership potential.

By memorandum dated 31 January 1997, the applicant was notified that he was considered for qualitative retention but not selected. He was informed that if he felt there was a material error in his record which could have affected his non-retention, he could submit a request for reconsideration. He should submit copies of the pertinent documents that were not in his file while the QRB was in session. Apparently at this time he received a copy of the commander's 1 December 1996 memorandum.

The applicant appealed his nonselection on 8 February 1997. He provided a letter of support from his platoon leader, who stated that the applicant was at the top of the list for promotion to MSG. He also stated the applicant displayed a high motivation and a genuine commitment to excellence and successfully completed each mission the platoon leader assigned to him. He provided a letter of support from a sergeant in his platoon. The sergeant stated that the applicant made an immediate and positive impact on the platoon and was directly responsible for the high morale the platoon had.

The applicant's appeal was denied.

On 31 March 1997, the applicant was discharged from the ARNG and transferred to the Retired Reserve.

In the processing of this case, an advisory opinion was requested from the National Guard Bureau (NGB). The NGB returned the request without action. However, the NGB provided some analysis of the applicant's case. They noted that they exhausted all means in trying to recover all pertinent documents (copies of the COARNG OML and the NYARNG E-8 promotion orders) but it has been too long since the alleged injustice and the records have been archived. Attempts to retrieve archived copes have failed. They noted that the additional documents provided by the applicant neither hurt nor helped his case. They noted that the applicant should have exercised his right to refuse to sign a document until he had actually seen the commander's recommendation to the QRB. They had no way to determine if the QRB made their decision based solely on the commander's letter of recommendation. The NGB suggested that, if the applicant could show he was selected for promotion to E-8 in the NYARNG and the promotion was delayed due to his move, the Board might want to consider changing his retirement grade to E-8 and promoting him retroactively if reinstatement was not viable. The NGB recommended that an advisory opinion be obtained from The Judge Advocate General.

A copy of NGB's response was provided to the applicant for comment or rebuttal. He responded by attaching two emails to him from the point of contact listed on the request for advisory opinion which indicated to him that his case had merit. The applicant stated he spoke with the officer in command of the 107th Military Police Company [NYARNG] at the time of the promotion, who recalled seeing the promotion orders and confirmed the applicant's version of events. The evidence is missing but the company commander attested to the fact the applicant was promoted after having left New York. In Colorado, his platoon leader saw the applicant's name at the top of the COARNG OML. Regarding his signing a document without seeing the letter of recommendation to which the document referred, he had an unshakable trust in his leaders and colleagues in the NYARNG. When he arrived in Colorado, he worked diligently to develop a similar rapport with his new leaders and peers. He looked for opportunities to earn the respect and trust of his superiors and to show that he trusted them in return. If he refused to sign the statement that he had seen his commander's recommendation to the QRB, he would be signaling to the commander that he did not trust her to do what was right. He knew he was placing his career in her hands. It would seem that his trust was misplaced. The applicant respectfully requested that his case have the benefit of The Judge Advocate General's evaluation.

Army Regulation 135-205 prescribes policies and procedures for the Qualitative Retention Program. Chapter 4 states that the QRP is essential to provide for progression of qualified enlisted personnel at proper intervals in their career. The QRP will ensure only the best-qualified soldiers are retained in a troop unit beyond 20 years of qualifying service for retired pay for continuing assignment to the comparatively few senior noncommissioned officer positions. The Chief, National Guard Bureau will monitor and support the QRP for the ARNG. State adjutants general will implement and administer the QRP for ARNG soldiers.

Army Regulation 135-205 states that QRP procedures provide for a biennial review of the military personnel records of all ARNG soldiers with 20 or more years of qualifying service for retired pay. Qualitative retention boards will be convened annually during January, February, or March. Unit commanders ensure all soldiers in the zone of consideration are notified using the sample memorandum at figure 4-1 as a guide. The soldier will endorse this memorandum. Paragraph 3 of the endorsement states, "I have reviewed my unit commander's comments. I have the following comments to make: None [or] As follows:"

Army Regulation 135-205 states that an ARNG QRB will evaluate the future benefits that can be expected to accrue to the ARNG from the continued membership status of each person. Within 30 days following adjournment of the board, the convening authority will take action on the board recommendations.
Soldiers not selected must be separated within 60 days following approval of the board's report.

National Guard Regulation 600-200 establishes policies and procedures for the management of ARNG enlisted soldiers in several functional areas including promotion. It states that to be eligible for promotion a soldier must: (1) be in a promotable status; (2) be participating satisfactorily in the active ARNG in the next lower grade; (3) have completed the time in grade and time in service criteria; (4) have a high school diploma or equivalent or higher civilian educational level and successfully complete the required military education; and (5) be qualified in the military occupational specialty for the position into which assigned and promoted.

National Guard Regulation 600-200 further states that the promotion selection process establishes the means to consider all eligible soldiers and select the best qualified soldiers for promotion. States will conduct one board and publish a promotion list for each rank approximately once each year. The selection objective will list in promotion sequence the best-qualified soldiers who will be assigned to current and projected vacancies in higher graded positions. The promotion list is neither a permanent standing list nor an order of merit list. Each list published by the State Adjutant General is a new list and is intended to remain valid until exhausted, or a subsequent list supersedes it approximately one year later. If soldiers are eligible and available for the assignment, they will be assigned and promoted provided they have met all other requirements for the promotion.

National Guard Regulation 600-200 lists a number of reasons for a soldier to be in a nonpromotable status, including being approved for nonretention by a Qualitative Retention Board and pending discharge in accordance with Army Regulation 135-205.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, 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 Board notes that the applicant has not provided either the promotion list for his NYARNG assignment or for his COARNG assignment. However, the Board has considered the applicant's contention that he was in line for promotion to E-8 in the NYARNG when his employer relocated him to Colorado.

3. The Board concludes that the applicant being on a NYARNG promotion list would not have made him eligible for the promotion in the NYARNG. The applicant made a voluntary (i.e., civilian employment driven rather than Army-directed) decision to move out of New York. Therefore, he could not have been assigned to any current or projected vacancies in the higher graded position in the NYARNG, the basic objective of the ARNG promotion system. Even if the promotion orders had actually been issued, the applicant noted in his rebuttal to NGB's advisory opinion that the company commander attested to the fact the applicant was promoted after having left New York. Again, the intent of the ARNG promotion policy, to fill State position vacancies, could not have been met. The Board concludes that such a promotion would not have been valid and should have been either revoked or rescinded.

4. The Board has considered the applicant's contention that he was in line for promotion to E-8 in the COARNG when a COARNG QRB did not select him for retention.

5. The applicant arrived at his COARNG unit in April 1996. At that time, the COARNG promotion list for that year had already been published. It appears the COARNG scheduled their promotion boards for January and the next list would not be published until on or about January 1997. Since the individual State is responsible for conducting promotion boards to fill State vacancies, the applicant was properly not administratively added to the COARNG promotion list based upon his NYARNG status. The applicant was subsequently considered by the COARNG promotion selection board and selected as best qualified for promotion.

6. The Board notes that, concurrent with the convening of the promotion selection board, the applicant was being considered for retention by the COARNG QRB. The Board notes his contention that he signed a statement that he had read the commander's letter of recommendation to the QRB and that he had no issues with its content, only after being verbally assured by the unit administrative noncommissioned officer that the letter would contain nothing unfavorable.

7. The Board notes that the commander's letter actually did contain some unfavorable comments although the commander's decision was to recommend the applicant be retained. The Board notes the applicant's contention that he signed the letter because he wanted to establish himself as a team player. However, the Board concludes that the applicant had an ultimate responsibility to himself not to sign something he was not sure was true.

8. The Board understands how the applicant could want to show that he trusted his superiors and believed that, if he refused to sign the statement that he had seen his commander's recommendation to the QRB, he would be signaling to the commander that he did not trust her to do what was right. However, he accepted the assurances of the unit administrative NCO, who was neither his superior nor a peer, that there was nothing unfavorable in the letter. At a minimum, as a senior NCO the applicant could have asked (rather than "demanded") the commander what information would be placed in the letter.

9. The QRB did not select the applicant for retention and it appears the commander's letter may have been a factor in the QRB's decision. The Board concludes that the fact the applicant signed a statement he did not know was true, and which turned out not to be true, is insufficiently mitigating to overturn the decision of the QRB.

10. The Board notes the seeming contradiction between the applicant having been found to be best qualified for promotion and at the same time being found to be not best qualified for retention in an active status. The Board has considered his soldiers' and his platoon leader's outrage at the decision of the QRB.

11. However, the Board notes that a promotion selection board and a QRB consider who is "best qualified" from two different viewpoints. A promotion selection board very narrowly focuses on who is best qualified for a particular grade in a particular State and in a particular position. A QRB has a much broader focus – to evaluate the future benefits the soldier can be expected to give to the entire ARNG. The Board concludes that being found best qualified for promotion does not necessarily contraindicate a finding of NOT being found best qualified for retention. There is no evidence to show the QRB decision was made solely to circumvent the promotion system.

12. The applicant's selection for nonretention by the QRB placed him in a nonpromotable status. The Board concludes that he was properly not promoted to MSG by the COARNG. Reinstating him in the ARNG or correcting his records to show he was placed n the Retired Reserve in the rank of MSG would not be appropriate.

13. 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

__ao___ __kh____ ___tr___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076053
SUFFIX
RECON
DATE BOARDED	20030605
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.03
2.	131.00
3.
4.
5.
6.