MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 September 2003
         DOCKET NUMBER: AR2003086239

         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. Raymond V. O'Connor		Chairperson
Mr. Frank C. Jones		Member
Ms. Barbara J. Ellis		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 given full (constructive) credit for the period 10 February 1985 – 14 July 1989.

APPLICANT STATES: That he was forced to request an administrative reduction in rank from Master Sergeant (MSG), E-8 to Sergeant First Class (SFC), E-7 in August 1981 in order to enter the Active Guard/Reserve (AGR) program. During the period from August 1981 – February 1985, he was led to believe that as soon as there were some E-8 allocations he would be given an opportunity to get his rank back. This never happened. Numerous allocations were distributed within the state. Finally, in March 1985, he was told to revert to technician status so he could get his E-8 back. In good faith he did that. He was told that within 6 months or no more than a year he could get back into the AGR program as an E-8. The state was in a hiring freeze from 1985 – 1989 but records prove that 46 soldiers were hired into the AGR program from June 1985 – June 1989. Out of the 46 soldiers that were hired into the AGR program, 36 were Anglo and only 10 were Hispanic.

The applicant states that in the meantime he started applying for all jobs within the state that were either E-8 or E-9. He never got considered for any of the jobs because he was a Civil Service Technician and technicians were not being hired into the AGR program. Finally, in July 1989, he was hired as the operations sergeant of the Texas National Guard Academy in an AGR status. He is not asking for any back pay or allowances. All he wants is to have his retirement points adjusted to get full credit for the time he was a technician from 10 February 1985 – 14 July 1989.

As supporting evidence, the applicant provides an Army National Guard Current Annual Statement; orders dated 28 August 1981 ordering him to active duty in an AGR status, in the rank of SFC, from 30 August 1981 – 29 August 1983, under Title 32, U. S. Code, under the Conversion of Technician Spaces to Full Time Military (CFTM) Program; orders dated 3 June 1983 ordering him to active duty in an AGR status, in the rank of SFC, from 30 August 1983 – 29 August 1984, under Title 32, U. S. Code; and orders dated 28 June 1984 ordering him to active duty in an AGR status, in the rank of SFC; from 30 August 1984 to 29 August 1985, under Title 32, U. S. Code, (apparently these orders were later amended to release him from the AGR program 9 February 1985).

The applicant also provides as supporting evidence orders dated 12 July 1989 ordering him to active duty in an AGR status, in the rank of MSG, from 15 July 1989 – 14 July 1992, under Title 32, U. S. Code; orders dated 18 June 1992 ordering him to active duty in an AGR status, in the rank of MSG, from 15 July 1992 – 14 July 1997, under Title 32, U. S. Code; orders dated 29 April 1997 ordering him to active duty in an AGR status, in the rank of MSG, from 15 July 1997 – 9 March 2001, under Title 32, U. S. Code; orders dated 21 February 2001 ordering him to active duty in an AGR status, in the rank of MSG, from 9 March 2001 – 31 March 2004, under Title 32, U. S. Code; and an email dated 17 April 2001 indicating all the AGR hires [for the State of Texas] between and including June 1985 – June 1989.

EVIDENCE OF RECORD: The applicant's military records from his Army National Guard service are not available. Information contained herein was obtained from the documents provided by the applicant.

After having had prior service in the Regular Army and the U. S. Army Reserve, he enlisted in the Army National Guard on 10 March 1969.

The applicant served on active duty as an SFC in an AGR position from 30 August 1981 through on or about 9 February 1985. He apparently reverted to an E-8 military technician at that time and served in that position until he again was ordered to active duty as a MSG in an AGR position effective 15 July 1989.

The applicant provides an email dated 17 April 2001 from a sergeant with the Texas Army National Guard. This email states it lists all (46) the AGR hires between and including June 1985 – June 1989. The ranks of these AGR hires are not indicated in the email. The applicant has highlighted the 10 Hispanic names listed.

National Guard Bureau Pamphlet 614-3(T) (Assignments, Details, and Transfers, Conversion to Full-Time Military (CFTM)) established administrative procedures and instructions for continuing the CFTM test program for all units of the ARNG.
This was the forerunner of the AGR program.

National Guard Regulation 600-5 (The Active Guard/Reserve (AGR) Program, Title 32, Full-Time National Guard Duty (FTNGD)) prescribes policies and procedures for management of Army National Guard soldiers in the AGR program who serve on active duty under the provisions of Title 32, U. S. Code, section 502(f). In pertinent part, it states that enlisted career management positions are designated as enlisted positions staff sergeant or higher. Enlisted AGR soldiers who have the required military occupational specialty, or the potential to acquire the required military occupational specialty within 12 months after assignment, will be considered qualified for career advancement.

National Guard Regulation 600-200 (Enlisted Personnel Management) provides that a soldier may volunteer for reduction to any lower rank to obtain a benefit or for personal preference. The promotion authority may then administratively reduce the soldier without board action. In pertinent part it states that the Army National Guard of the United States 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 promotionlist for each rank approximately once each year. 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. AGR SFCs and MSGs may receive an AGR controlled grade before the list expires. AGR SFCs and MSGs assigned, but for whom there are no controlled grade allocations against which to promote, will remain assigned to the positions and may be considered anew by the next boards. State leadership decides which positions and soldiers are allocated to the limited number of controlled grades and the method through which this is done.

Title 10, U. S. Code, section 10216 states that military technicians are Federal civilian employees hired under Title 5 and Title 32 who are required to maintain dual-status as drilling reserve component members as a condition of their Federal civilian employment.

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 considered the applicant's contention that he requested an administrative reduction to accept an AGR position in 1981 with the understanding that he would get his rank back as soon as there were some E-8 allocations.

3. The Board notes that the applicant's reduction would have been voluntary. He provides no evidence to show he was "forced" to take the reduction. He contends that numerous allocations were distributed within the state but provides no evidence to show that E-8 allocations were distributed during his first period of AGR service and that he was unfairly denied one of them.

4. The Board considered the applicant's contention that he was advised to revert to technician status so he could get his E-8 back and that within 6 months or so he could get back into the AGR program as an E-8. The Board considered his contention that the state then had a hiring freeze from 1985 to 1989 but that 46 soldiers were hired for AGR positions during that time (and only a minority of those being Hispanic). The Board considered his contention that he started applying for all jobs within the state that were either E-8 or E-9 but never got considered for any of the jobs because he was a Civil Service Technician and technicians were not being hired into the AGR program.

5. The Board notes that the applicant's reversion to his technician status would have been a voluntary request on his part. He provides no evidence to show he was "forced" to leave the AGR program. He provides no evidence to show that there was a hiring freeze during the period June 1985 – June 1989. He provides no evidence to show that any of the 46 individuals hired during that time were hired for E-8 positions. He states that he was not hired because he was a technician but he provides no evidence to show any of those 46 individuals were also technicians but were hired anyway.

6. In addition, the Board notes that the applicant indicated he reverted back to his technician status during the period February 1985 – July 1989. Therefore, he had a military status during that time period. The Board concludes that it would not be equitable to give him the relief he requests.

7. 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

__rvo___ __fcj___ __bje ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086239
SUFFIX
RECON
DATE BOARDED	20030904
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	135.02
2.
3.
4.
5.
6.