MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 December 2003
         DOCKET NUMBER: AR2003085246

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Eloise C. Prendergast		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 his retired pay be corrected from major (MAJ) to lieutenant colonel (LTC), pay grade O-5.

APPLICANT STATES: That he was retired as a LTC but is being paid as a MAJ because he did not hold the rank of LTC for a minimum of 180 days. He states that he was serving in a LTC position when the 1996 mandatory promotion board selected him for promotion. Therefore, he should have been promoted and given Federal Recognition in accordance with the official effective date of 7 June 1997.

He further states that he contacted the National Guard Bureau (NGB) personnel office as early as December 2000 with the necessary paper work but no action was taken until the last day he was on active duty, a year and eight months later.

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

He entered active duty in 1965 and served as a commissioned officer until 1972. He returned to military service in the New Jersey Army National Guard (NJANG) in 1983.

On 24 June 1986 the applicant, then a captain, first accepted a fulltime NGB AGR (Active Guard/Reserve) position. On 1 July 1989 he voluntarily extended his AGR commitment for an indefinite period. He was promoted to major on 8 June 1990.

On 18 July 1996 he transferred to the Army National Guard Operating Activity, Arlington, Virginia, as the Safety Officer for the Counterdrug Task Force.

A Total Army Personnel Command memorandum, dated 6 January 1997, shows the 1996 mandatory selection board selected him for LTC, with a promotion eligibility date 7 June 1997.

A 29 September 1997 memorandum from the Director, NGB Counterdrug Directorate (Subject: Request for Exception to Policy to Promote Major [the applicant] to Lieutenant Colonel) stated that the applicant was assigned as the Safety Officer for the Counterdrug Directorate. He reported that this was an O-5 position and that the applicant's status as a LTC would greatly enhance his interaction with other agencies. The Counterdrug Director further contended that, since Counterdrug positions did not count against end strength, and the applicant was already serving in a LTC position, he should be promoted immediately. A second, identical, letter was submitted on 19 February 1998.

In an undated memorandum written for the New Jersey Adjutant General, the NGB Deputy Director, Personnel and Manpower stated that the applicant's promotion could not be approved. He ranked in the bottom-third of the NGB Tour Advisory Review Panel list. The NGB Deputy Director, Personnel and Manpower related that the applicant had been evaluated twice, but had not been promoted due to limited control grades and the applicant’s overall standing on the list.

An undated NJANG memorandum notified the applicant that, because of the non-approval of his promotion by the NGB, his name would be retained on the list until he was reassigned to an AGR position calling for the higher grade or he was promoted upon his release from active duty.

Tennessee Army National Guard (TNARNG) Orders 190-62, show that the applicant was appointed in the Tennessee Army National Guard in the rank of major with Federal recognition effective 29 September 1997.

Tennessee Army National Guard Orders 216-127, dated 9 November 1998, show the applicant was promoted to LTC effective 31 December 1998, but would not be paid as a LTC until Federal Recognition was confirmed.

NGB Special Orders Number 220 AR, dated 15 December 1998, withdrew his Federal recognition as a LTC in the TNARNG effective 31 December 1998 due to his transfer to the Retired Reserve.

A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows that he transferred to the Retired Reserve in the grade of LTC with an effective date of promotion and transfer of 31 December 1998.

His 31 December 1998 DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated from active duty and transferred to the Retired Reserve effective 31 December 1998. He had 20 years, 5 months, and 1 day of active service with 4 years, 10 months, and 4 days of inactive service. His effective date of grade (LTC) is 31 December 1998.

Army Regulation 140-30 provides policy and procedures for management of AGR positions. Paragraph 7-1a states: “Officers in AGR status may be selected for promotion regardless of attachment but will not be promoted unless the officer is presently in a position requiring a higher grade and has reached his or her promotion eligibility date.”

Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) state that an AGR officer selected by a mandatory promotion board, but who cannot be promoted due to strength and/or position limitations will have two options. Such officer can voluntarily leave the AGR program and accept promotion in the higher grade or remain in the current grade in the AGR program. Officers who remain in the AGR program will be considered to be in an indefinite involuntary delay status and will remain on the promotion list.

Army Regulation 135-155, paragraph 4-5b, states that a Army Reserve officer who is transferred to the Retired Reserve due to completion of the maximum number of years of service will be transferred in the grade for which they have been selected for promotion.

Title 10, chapter 69, section 1370 states that a Reserve officer unless entitled to a higher retired grade under some other provision of law, is to be retired in the highest grade in which he satisfactorily served on active duty for not less than 180 days.

Title 10, chapter 69, section 1370, subsection (2)(A) states that in order to be eligible for voluntary retirement in a grade above major [emphasis added] a commissioned officer must have served on active duty in that grade for not less than three years. Between 1 October 1990 and 31 December 2001 the Secretary of Defense could authorize the Secretary of a military department to decrease the period to not less than two years.

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

1. The applicant's selection by the 1996 promotion selection board did not constitute or mandate his actual promotion to the higher grade.

2. As an AGR officer he could not be promoted unless occupying a position requiring the higher rank and when there was a vacancy within the allowable strength at that higher grade.

3. Even though he may have been in a LTC position, in his assignment with the Counterdrug Directorate, he had to compete on a wider basis with other AGR officers. The applicant was not approved for promotion because of a limited number of authorized grade levels and his ranking on the NGB Tour Advisory Review Panel list.

4. By his own admission the applicant did not serve 6 months as a LTC, however that is not the requirement. Since he was retired from active duty the law requires that he serve at least 3 years as a LTC in order to be paid for that rank in retirement.

5. 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.

6. 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.

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

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INDEX

CASE ID	AR2003085246
SUFFIX
RECON
DATE BOARDED	20031209
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	129
2.	131
3.
4.
5.
6.