RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 March 2005
      DOCKET NUMBER:  AR20040004566


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. Allen L. Raub                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Robert Rogers                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show he was
promoted to colonel.

2.  The applicant states that he was retaliated against for reporting
criminal activity to the Federal Bureau of Investigation (FBI) and the
Defense Criminal Investigative Service (DCIS).  The failure to promote him
was a blatant retaliation even though a position was available for
promotion.

3.  The applicant provides a narrative of events and the names of FBI,
DCIS, and Military Intelligence agents to whom he gave documents and
information.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 February 1995.  The application submitted in this case is
dated 19 July 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  After having had prior service, the applicant was appointed a captain
in the Texas Army National Guard (TXARNG) on 9 December 1972.  He entered
active duty in an Active Guard Reserve (AGR) status on 8 July 1979.  From
1981 until he retired his principal duty was a procurement officer or
supervisory contract specialist assigned to Headquarters, State Area
Command (STARC), Austin, TX. In his narrative of events, the applicant
states that he performed the duties of Chief of Contracting, U. S. Property
and Fiscal Office for Texas which supported the TXARNG and the Texas Air
National Guard.

4.  The applicant was promoted to lieutenant colonel on 21 October 1987.

5.  On 4 March 1988, the applicant received a letter of reprimand for
saying he completed the 2-mile run on an Army Physical Fitness Test in 19
minutes when
in fact he did not complete the run.  The Adjutant General of Texas
directed the letter be filed on his restricted fiche.

6.  In his narrative of events, the applicant stated that, in December
1990, Tank Systems, Incorporated submitted an invoice to pay an employee
for attending a seminar in another state and paying him a consultant fee.
The applicant considered that to be an irregular procurement and reported
it to the National Guard Bureau (NGB)'s Contract Attorney for Fraud.  His
supervisors were highly agitated that he reported the incident.

7.  In his narrative of events, the applicant stated that, in November
1992, he was shown a minor accounting error.  After looking more at the
books, they discovered that $3.8 million was missing.  When he reported
that to the FBI, he was told that $5.3 million was missing.  His
supervisors dismissed his finding and retaliation and harassment were
stepped up.

8.  In his narrative of events, the applicant stated that, in December
1992, a request for payment was handcarried by an individual.  That same
individual had handcarried another payment the prior month but he had
signed a different name and also introduced himself as a different person.
(The identity of who handcarried/signed documents is a little confusing in
the narrative.)  The applicant reported the incident to the FBI and his
supervisors.  His supervisors again were hostile and intimidation
increased.

9.  In his narrative of events, the applicant stated that, in March 1993,
his supervisor made a highly irregular contract payment to Tank Systems,
Incorporated.  He and a contract administrator made a memorandum for
record.  His supervisor threatened the contract administrator with bodily
harm and told him to seek employment elsewhere.  The applicant sent a copy
of the memorandum for record to the FBI and DCIS.  He received threats of
bodily harm.

10.  On 28 February 1995, the applicant was released from active duty after
completing sufficient service for retirement.

11.  In the processing of this case, an advisory opinion was obtained from
the Personnel Division, NGB.  That office noted that the applicant should
have been protected from retaliatory action; however, the promotion
authority for all National Guard officers is the State Adjutant General
(TAG) per National Guard
Regulation 600-100, paragraph 8-1.  If the State does not want to promote
an officer, the TAG does not promote him.

12.  The advisory opinion also noted, however, that the applicant was not
selected for promotion to colonel by the 1991, 1992, and 1994 Reserve
promotion selection boards, selection for which was based on the Soldier's
performance and service record.  A search of the applicant's Official
Military Personnel File (OMPF) revealed a letter of reprimand on his
performance fiche that was directed to be filed on his restricted fiche.
Promotion reconsideration by a special selection board (SSB) may be based
on erroneous non-consideration or material error.  The filing of the letter
of reprimand on the applicant's performance fiche rather than his
restricted fiche was material error; therefore, that office recommended the
applicant's personnel file be forwarded to an SSB under the 1991 promotion
criteria after the letter is removed from his performance fiche and
transferred to his restricted fiche.  (On 17 March 2005, that office
informed the Board analyst that, since the letter of reprimand was still
filed on his performance fiche during the 1992 and 1994 promotion selection
boards, his records should be reconsidered for promotion under the 1992 and
1994 criteria, also.)  That office also recommended that, if he is selected
for promotion, he be retired as a colonel, O-6.

13.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  On 29 November 2004, he declined to rebut the
advisory opinion.

14.  National Guard Regulation 600-100 (Commissioned Officers – Federal
Recognition and Related Personnel Actions), paragraph 8-1 states that the
promotion of officers is a function of the State.  Paragraph 8-2a states
that promotion criteria will be based on efficiency, time in grade, time in
commissioned service, demonstrated command and staff ability, military and
civilian education, and potential for service in the next higher grade.
Paragraph 8-2b states that, except as provided in the regulation,
promotions will be accomplished only when an appropriate vacancy in the
grade exists in the unit.

15.  National Guard Regulation 600-100, paragraph 8-11 states that a
Federal Recognition Board will review the records of commissioned officers
recommended for promotion.  Paragraph 8-12 states that documents to be
reviewed will include the memorandum for recommendation from the officer's
immediate commander, properly endorsed by all commanders concerned and by
the TAG.  Paragraph 8-14 states that ARNG commissioned officers will be
mandatorily considered for promotion as Reserve commissioned officers of
the Army when they meet minimum promotion service requirements for the zone
of consideration.  Provisions of Army Regulation 135-155 will apply.

16.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve officers.  It specifies that promotion reconsideration
by an SSB may only be based on erroneous non-consideration or material
error which existed in the records at the time of consideration.  Material
error in this context is one or more errors of such a nature that, in the
judgment of the reviewing official (or body), it caused an individual’s non-
selection by a promotion board and that had such error(s) been corrected at
the time the individual was considered, a reasonable chance would have
resulted that the individual would have been recommended for promotion.

17.  Title 10, U. S. Code, section 1370(a)(1) provides that a commissioned
officer who retires under any provision of law except chapters 61
(disability) or 1223 (non-regular service) shall, except as provided in
paragraph (2), be retired in the highest grade in which he served on active
duty satisfactorily for not less than six months.  Section 1370(a)(2)(A)
provides that, in order to be eligible for voluntary retirement under any
provision of this title in a grade above major, a commissioned officer of
the Army must have served on active duty in that grade for not less than
three years.  At the time, the Secretary of the Army was authorized to
reduce this three-year period to a period not less than two years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions concerning retaliation against him for
reporting criminal activity to the FBI and DCIS is noted.  However, given
that he received a letter of reprimand as a lieutenant colonel, there is
reasonable doubt to believe that retaliation was the only reason he was not
recommended for promotion to a unit vacancy.

2.  Nevertheless, there was a material error in the applicant's records
when they were considered by the 1991, 1992, and 1994 mandatory Reserve
colonel promotion selection boards.  The letter of reprimand was directed
for filing on his restricted fiche; it had been filed on his performance
fiche.  The letter of reprimand should be transferred to his restricted
fiche, after which his records should be reconsidered for promotion under
the 1991, 1992, and 1994 criteria.

3.  The applicant did not comment on the advisory opinion's recommendation
in his case.  Therefore, if the applicant is selected for promotion by one
of the SSBs, he will have to submit another application to the Board
requesting further correction to his records (issues such as time-in-grade
waivers and effective date of retirement would have to be addressed).

BOARD VOTE:

________  ________  ________  GRANT RELIEF

__alr___  __reb___  __rr____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by transferring the letter
of reprimand dated 1988 and any related documents from his performance
fiche to his restricted fiche.

2.  That following administrative implementation of the foregoing, his
records be submitted to a duly constituted Special Selection Board for
reconsideration for promotion under the Reserve Colonel Selection Board
1991, 1992, and 1994 criteria and he be notified of the results of those
boards.

3.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
promoting the applicant to colonel.




            ___Allen L. Raub______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040004566                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050324                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.11                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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