RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 November 2005
      DOCKET NUMBER:  AR20040007602


      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             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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, in effect, reconsideration of his original
request that he be reinstated in the Army National Guard and that he be
promoted to Master Sergeant (MSG), E-8.

2.  The applicant states, in effect, that:

      a.  his request for reconsideration is based on new evidence not
available at the time of his original request.


      b.  another Soldier who was below him on the promotion list was
selected by the Delaware Army National Guard Senior NCO (noncommissioned
officer) Career Management Board (SNCOCMB) for the position of Area NCO and
subsequently promoted to Master Sergeant, E-8.


      c.  he was never removed from the promotion list in accordance with
the governing regulation, NGR 600-200.


      d.  the Delaware Army National Guard does not operate in conformance
with the State of Delaware Code, Section 103 and 104 which states that it
shall conform to Federal statutes and regulations relating to and governing
the armed forces of the United States.


      e.  the Delaware Army National Guard violated the National Guard All
States Memorandum I98-0086, and in particular that portion that pertains to
Question 12, dated 1 February 1998 which states, "To the contrary, all
eligible Soldiers will be considered for promotion unless they are formally
denied consideration."


      f.  the appropriate individual never officially deemed him ineligible
for promotion prior to the 11 December 1999 meeting of the SNCOCMB.


      g.  there is a disparity between the Delaware Army National Guard
Recruiting and Retention Policy 98-04 and the National Guard Bureau All
States Memorandum with regard to the positions, length and type of
experience needed for promotion consideration.


      h.  the Delaware Army National Guard Recruiting and Retention Policy
98-04 violates the provisions of NGR 600-200, paragraph 11-35b(3) which
prohibits the establishment of local requirements for consideration such
as time served in a unit or position, recruiting production or other
criteria not provided in the chapter.


      i.  that different standards for similar individuals in identical
situations in matters concerning selection and promotion were applied by
the Delaware Army National Guard.

3.  The applicant provided those documents that are listed as Exhibits A
through N, which are shown on an inventory attached to his letter to the
Board requesting reconsideration of his earlier denied request for the
correction of his military records.  Exhibits will be summarized, in part,
in the Consideration of Evidence below.  The applicant also provided a
copy of his service record in support of his application to the Board for
reconsideration of his appeal.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003087534, on 16 December 2003.

2.  By the applicant's admission, he complained to the Office of the
Inspector General via the DOD Hotline concerning a promotion issue, that a
Soldier was erroneously selected for promotion off the 1999 Delaware Army
National Guard promotion list to master sergeant and that it was he who
should have been promoted because he was fully qualified and eligible.

3.  The applicant provided a copy of the letter he received from the Office
of the Inspector General, State of Delaware, Delaware National Guard, Joint
Force Headquarters, dated 6 May 2004, which he labeled, Exhibit A.  The
applicant considers this letter, a reply he received to his DOD Hotline
complaint, to be "the new evidence" which he considers "is the
determination concerning part of" his complaint.

4.  In the reply, the applicant was reminded that in previous
correspondence with him, [correspondence apparently addressed to the
applicant on 11 May 1999 and 5 October 2001, which the applicant did not
include with his request], the Office of the Inspector General had
determined and notified him that Delaware Army National Guard Recruiting
and Retention Policy #98-04 was valid and based on the contents of this
policy, he did not meet the requirement for promotion.  This, the Office of
the Inspector General stated, was the apparent reason he [the applicant]
was found to be not eligible for selection and promotion and the next
eligible Soldier on the list was selected.

5.  In the letter, dated 6 May 2004, addressed to the applicant from the
Office of the Inspector General, he was asked to keep in mind that it had
been almost five years since the publication of the promotion list.
Because so many years had passed since the board was convened and Soldiers
were selected, it was difficult to determine the exact chain of events and
timeliness concerning the promotion selections.  On 6 May 2004, the
Inspector General stated, promotion packets, board records, requests for
selection, etc. were no longer available.

6.  The Inspector General advised the applicant that he had not provided
evidence that the promoted Soldier was not qualified or that he was
erroneously selected or that he [the applicant] was qualified for
selection; therefore, the issue was deemed to be unfounded.

7.  The remainder of the Exhibits the applicant submitted for consideration
by the Board are labeled Exhibit B through N and they are summarized, in
part, as follows:

      a.  Exhibit B shows that the applicant was on a promotion list to
Master Sergeant, E-8, in the military occupational specialty 79T40 with 705
points.  The applicant's name is third on this list and the promoted
individual is fourth on the list with 653 points.

      b.  Exhibit C is an extract from NGR 600-200, paragraph 11-38,
Denying Soldiers Consideration for Promotion.  This regulation states
that Soldiers who are eligible for promotion may be denied
consideration for promotion using the guidance and procedures in
paragraph 11-49g.  Denial may be based on misconduct, shortcomings in
personal and professional qualities and qualifications, or lack of
potential to serve at the next higher grade.  This action will be taken
when the individual deficiency is not sufficient to warrant a bar to
reenlistment or extension or elimination from service.  When approved,
the denial of consideration will be maintained with, and will expire
with, the promotion list for which it was initiated.

      c.  Exhibit C further states that an initial denial of consideration
for promotion will be submitted on DA Form 4187, Personnel Action.  A DA
Form 4856, Developmental Counseling Form, on which the commander has
personally counseled the soldier on the reason for recommending denial,
will be appended to the DA Form 4187.  Soldiers may rebut their
commander's recommendations and submit statements that directly affect the
circumstances.  Denial of promotion consideration for master sergeant may
be approved by the State Adjutant General.
      d.  Exhibit D is an extract from Delaware State Code.  This
extract displays sections 103 and 104 of the Delaware State Code.  In
section 103, this code states that the National Guard of the State of
Delaware shall conform to Federal statutes and regulations relating to
and governing the armed forces of the United States, insofar as they are
applicable and not inconsistent with the Constitution of Delaware or the
Title itself.  In section 104, the Adjutant General is given the
authority to publish rules and regulations for the government,
discipline and exercise of the Delaware National Guard.  Such rules
shall conform, so far as practicable, (emphasis added) to the rules,
regulations and statutes of the Department of Defense, the Army, the Air
Force and the National Guard Bureau of the United States.  This section
also states that when such rules and regulations have been promulgated
and published by the Adjutant General, they shall have force and effect
of law.

      e.  Exhibit E is a copy of a Departments of the Army and Air Force
Memorandum, Subject (All States Log Number I98-0086) Enlisted Personnel
Management Update 1.  This memorandum is the first in a series of
memoranda related to enlisted personnel management issues.  Enclosed in
this memorandum was a series of questions and answers that were presented
at the Human Resources Conference in 1997.

      f.  On page five, of thirteen pages, of Exhibit E, is the
statement and questions, "We have some Soldiers and NCO [noncommissioned
officers] who we do not feel should be promoted.  For instance, we have
a few Recruiting and Retention NCOs who are not making their recruiting
mission.  Can we line them out in the PER [acronym unknown] when the
annual board is announced?  What if we do not and they place high on the
list; can we line them out then?"  The answer given to this question was
as follows:  "The answer is no to both questions.  There is a
misunderstanding that some leaders feel they simply do not have to
recommend Soldiers for promotion and that's it.  To the contrary, all
eligible Soldiers will be considered for promotion unless they are
formally denied consideration.  If you want to do that, you must follow
the process in NGR 600-200, paragraph 11-38. Once the list is published,
and you have no good reason to remove a Soldier from the promotion list,
you have to follow the process in paragraph 11-49.  There are some
strong safeguards in both these processes.  These are safeguards to
protect the good Soldiers in your units.  No one should take either
action lightly.  There are sanctions for Soldiers who cannot perform
their strength management missions; the promotion system is not one of
them.  This applies to all programs, not just the strength maintenance
program.
      g.  Exhibit F is a copy of page ten extracted from what appears to
be the results of an Inspector General investigation.  In the pertinent
part of this report, it appears the applicant and another Soldier were
told they could not have been promoted in June or July 1998 because they
did not have the minimum recruiting and retention experience requirement.
 When a recruiting and retention position came open in early 1999,
another Soldier was promoted.  It is apparent that the first person on
the list in the MOS was not promoted into the position because of the
lack of recruiting and retention experience.  However, as a result of
investigating a complaint related to this issue, the first person on the
list was later promoted with a back-dated date of rank because he had not
been formally informed or counseled that he was being denied the
promotion as required by NGR 600-200, paragraph 11-38.

      h.  Exhibit G is a Memorandum, Subject:  ABCMR Proceedings (Docket
Number AR2001065548) pertinent to the Soldier's [not the applicant's]
situation described in Exhibit F above, which was prepared by the
Department of Military Affairs, Headquarters, Delaware National Guard,
dated 15 May 2003.  In this memorandum, The Adjutant General announced
that he did not intend to implement the recommendations of the ABCMR to
promote the applicant.  His reasons are summarized as follows:

            1.  in accordance with the applicable regulation, NGR 600-
200, chapter 11, paragraph 11-28a, an allowance was made for "selection"
then "assignment" followed by the "training" and "promotion" phases.  An
allowance was also made for the consideration of Soldiers for promotion
without regard to their current level of NCOES (noncommissioned officer
education system).  The selection process, The Adjutant General stated,
was "firmly embedded in the Delaware Army National Guard.  When the issue
of an erroneous promotion surfaced, The Adjutant General took appropriate
action to rectify the "honest mistake."  Promotion points were
recalculated and the promoted individual, even though he did not have the
appropriate level of military education, remained ahead of the applicant
to the ABCMR on the promotion list.

            2.  the Delaware Army National Guard did not have a slot into
which the applicant to the ABCMR could be promoted at the time.  The
Adjutant General added that if an E-8 or an E-9 controlled grade were
authorized, the organization deemed other respective positions outside
the 79T MOS more important.

      i.  In the background provided in the in this memorandum (Exhibit G)
that was developed, it was found that:
            1.  In June 1998, there were eight Soldiers on the list for
MOS 79T.

            2.  In January 1999, there was a promotion vacancy.  The
Director of Personnel determined that the top three Soldiers on the list in
the MOS 79T were not eligible for promotion (for various reasons) and the
fourth Soldier on the list in the MOS was promoted.

            3.  In September 2001, a complaint was received by the Delaware
Inspector General that the promoted Soldier had not completed the military
education required for promotion to master sergeant; i.e., completion of an
Advance NCOES Course.  The issue was investigated and it was found that
the Soldier did not meet the appropriate educational requirement.  By the
time the issue surfaced, the promoted Soldier had been promoted and had
performed in a master sergeant position for over two and a half years.

            4.  In April 2002, a determination was made that the first
Soldier on the list had been "wronged" and should have been promoted.
The Adjutant General directed that action be taken to promote the first
person on the list and back date his promotion to coincide with the date
the promoted Soldier had been promoted.

      j.  In the summary of Exhibit G, The Adjutant General determined
that the recommendations made by the ABCMR to promote the applicant, in
that case, were not to be implemented immediately but that the applicant
to the Board would be promoted when he met the prerequisite requirements
for selection and promotion mandated in the Enlisted Promotion System.

      k.  Exhibit H is a memorandum, Subject:  Recruiting and Retention
Policy Memorandum #98-04 (Selection and Promotion Policy), prepared and
distributed by the State of Delaware, Department of Military Affairs,
Headquarters, Delaware National Guard, dated 23 December 1998.  This
policy memorandum provided instructions and guidance on how the Delaware
National Guard planned to use the National Guard regulations and other
related policies to manage the selection, training, assignment and
promotion of all Soldiers holding the CPMOS of 79T.  In this memorandum,
the Recruiting and Retention Manager cited the following as references:

            1.  NGR 600-5, The AGR Program, dated 20 February 1990.

            2.  Army Regulation 600-8-2, Suspension of Favorable Personnel
Actions (FLAGS), (undated).

            3.  NGR 600-200, Enlisted Personnel Management, dated 1 March
1997.

            4.  NGR 601-1, R&R Resources Management, dated 23 July 1996.

            5.  NGR 601-2, Strength Maintenance Program, dated 1 October
1996.

            6.  National Guard Bureau Memorandum (All States Log #I97-
0045), dated 5 December 1996.

      l.  In paragraph 3 of the above referenced memorandum, the Recruiting
and Retention Manager specifically stated that "All Soldiers being
considered for a Strength Maintenance NCO position must meet the criteria
in all applicable regulations before final selection can be made."  The
memorandum also contained a paragraph (paragraph 6) that stated that, "It
is the recommendation of the National Guard Bureau that all Soldiers
selected for an R&R position (79T) Master Sergeant (E8) or Sergeant Major
(E9) must have at least three (3) years of field experience in Recruiting
and Retention Operations."  The Recruiting and Retention Manager did not
agree with the three years of experience recommended by the National Guard
Bureau.  He reduced the recommendation to two years experience, as
field recruiter, to be considered eligible for promotion into a supervisory
position.

      m.  Exhibit I is a Memorandum, Subject:  (All States Log Number I97-
0045) Recruiting and Retention Force Senior Noncommissioned Officer
Selection Criteria, prepared by the Departments of the Army and Air Force,
National Guard Bureau, dated 5 December 1996.  The recommendation for the
three years experience that was referred to in Exhibit H above, which the
Recruiting and Retention Manager had disagreed with, was contained in
paragraph 3 of this memorandum.

      n.  Exhibit J is an extract from NGR 600-200, Chapter 11, paragraph
11-35.  Included in this paragraph are the requirements that commanders
must undertake in processing Soldiers for promotion consideration.  In
sub-paragraph b.(3) is a stipulation that, "No one may establish local
requirements for consideration such as time served in a unit or position,
recruiting production, or other criteria not provided in" the chapter.
o.  Exhibit K is a copy of the applicant's DD Form 214, Certificate of
Release or Discharge from Active Duty, with an effective date 7 April 1982,
he received when he was released from active duty in the Regular Army.

      p.  Exhibit L is copy of an NCO Job Description for the position of
Unit Readiness NCO.  The applicant has highlighted two sentences in the
body of this description which read as follows:  "Works directly with the
commander in monitoring recruiting and retention activities of the unit.
[The Unit Readiness NCO] is directly involved in the maintenance of
strength and personnel readiness issues of the unit to include employer
support and family programs.

      q.  Exhibit M is a copy of page seven extracted from what appears to
be the results of an Inspector General investigation.  In the pertinent
part of this report, it appears an investigation was conducted to determine
the circumstances behind the promotion of an individual into a valid 79T
position who was lower on the list than the applicant and others.
Investigation into the alleged promotion list and promotion inconsistencies
revealed that the first person on the list was not promoted because he and
the number three person on the list did not meet the two year, as opposed
to the three year experience requirement set by the National Guard Bureau.
The number two person on the promotion list was also ineligible for
promotion because she was "flagged."  Based on these findings, the fourth
person on the list was promoted.

      r.  Exhibit N shows that the applicant was on the 1998 promotion list
to Master Sergeant, E-8, in the military occupational specialty 79T40 with
712 points. The applicant's name is third on this list and the promoted
individual is no longer shown on the list.

8.  Item 35 (Record of Assignment), of the applicant's DA Form 2-1, Part
II, Personnel Qualification Record, shows that he served on active duty
in the Regular Army from 8 May 1978 through 7 April 1982.  The applicant
served as a cannon crewman (58 months) and as a fire direction specialist
(40 months).

9.  The applicant alleges to have received retention training while he
served on active duty at Fort Richardson, Alaska, in 1980.  A review of
Item 17 (Civilian Education and Military Schools), of the applicant's DA
Form 2-1, lacks an entry to corroborate this allegation.  In addition,
there is insufficient evidence in Item 35, of his DA Form 2-1, to support
his allegation since entries made in personnel records while he served on
active duty from 8 May 1978 through 7 April 1982
were consolidated and summarized in accordance with applicable regulations
governing the establishment of, maintenance of, and disposition of the DA
Form 2-1 when he enlisted in the National Guard.

10.  The applicant also alleges to have served as the unit retention NCO
for his active duty unit for 2 years.  There is no documentary evidence (in
the form of orders, a disposition form, a memorandum, or personnel action
form) in his service personnel record, and the applicant provided none, to
show that he was assigned the duties of retention NCO on a full time basis
as he alleges.  There is also no indication in his service personnel
records showing that he was assigned the responsibilities of retention NCO
on an additional duty basis.

11.  Item 17, of the applicant's DA Form 2-1, contains an entry showing
that the applicant completed an 8 week ARNG (Army National Guard) 79T Basic
Course in 1998.  A copy of a DA Form 1059, Service School Academic
Evaluation Report, is on file in the applicant's service records.  The
applicant attended and completed this course, meeting course standards, on
20 February 1998.

12.  Two orders were published on 4 November 1997.  One order (Orders 308-
004, State of Delaware, Department of Military Affairs, Headquarters,
Delaware National Guard) released the applicant from assignment to the
198th Medical Company, Air Ambulance, Delaware Army National Guard and
assigned him to the STARC (State Area Command), Delaware Army National
Guard, for duty in the MOS 79T, with an effective date 15 December 1997.
The other order (Orders 308-005, State of Delaware, Department of
Military Affairs, Headquarters, Delaware National Guard) assigned the
applicant to the Recruiting Office in Dover, Delaware, for duty as a
strength maintenance NCO.  This order indicated the applicant held the
MOS 91B4O.

13.  A copy of orders awarding the applicant the MOS 79T were not found in
the copy of service records he provided in support of his request.

14.  The applicant was awarded the Army National Guard Senior Recruiter
Badge in a memorandum prepared by the State of Delaware, Department of
Military Affairs, Headquarters, Delaware National Guard, on 16 November
1999.

15.  The applicant was awarded the military occupational specialty (MOS)
79T4H, with an effective date 24 September 1999, in orders 351-024, State
of
Delaware, Department of Military Affairs, Headquarters, Delaware National
Guard, dated 17 December 1999.  The MOS 79T4O was withdrawn on the same
date.

16.  DA Form 2166-7, NCO Evaluation Report, covering the rated periods from
January 1998 through December 1998 and from January 1999 through December
1999 shows the applicant was rated in the principal duty title and duty
MOS, Recruiting and Retention NCO, MOS 79T40, during both these rating
periods.

17.  On 13 January 2000, Orders 013-038, were published by the State of
Delaware, Department of Military Affairs, Headquarters, Delaware National
Guard, releasing the applicant from the position of strength maintenance
NCO and reassigned him to duties as Operations NCO at the STARC.  The
effective date of his reassignment was 1 February 2000.

18.  On 22 February 2000, Orders 053-515, were published by the State of
Delaware, Department of Military Affairs, Headquarters, Delaware National
Guard, releasing the applicant from the STARC and reassigning him to the
59th Health and Dental D4 STARC, Wilmington, Delaware for duty as Operation
NCO, in the duty MOS 91B40.

19.  On 3 January 2001, Orders 003-500, were published by the State of
Delaware, Department of Military Affairs, Headquarters, Delaware National
Guard, reassigning the applicant to the STARC, Wilmington, Delaware, to
serve as a Readiness NCO in the MOS 91B40.  The job description the
applicant submitted in support of his request corresponds to this
assignment and these duties and does not support his contention that he had
extensive experience in recruiting and retention.

20.  Orders 355-500 were published by the State of Delaware, Department of
Military Affairs, Headquarters, Delaware National Guard, on 20 December
2000, promoting the Soldier, whom the applicant alleges was promoted ahead
of him, to master sergeant in the MOS 79T.  The applicant was no longer
performing the duties in the MOS 79T and was no longer assigned as a
recruiting and retention NCO on the effective date of this Soldier's
promotion.

21.  The Delaware Army National Guard Promotion Lists prepared in 1998 and
1999 show that the applicant's name was on both lists.  The promoted
individual was added to the 1999 promotion list.  The applicant had 705
points while the promoted Soldier had 653 points.  Since the promoted
individual's service
records are not available for review, it is unknown what his experiential
level in recruiting and retention was, in comparison to the applicant's.

22.  On 11 December 1999, when the other Soldier was selected by the
Delaware Army National Guard Senior Noncommissioned Officer Career
Management Board (SNCOCMB) for the position of Area Noncommissioned Officer
and was subsequently promoted to master sergeant from the 1999 Delaware
Army National Guard 79T Promotion List, in December 2000, the applicant had
a total of 1 year, and 9 months, and 21 days verifiable recruiting and
retention experience. The applicant still lacked the 3 years recommended by
the National Guard Bureau and the 2 years that was favored by the
Recruiting and Retention Manager.  All States Log I97-0045, Recruiting and
Retention Force Senior Noncommissioned Officer Selection Criteria, in
paragraph 3, states that States "should consider the importance of
experience when making these selections.  Our guidance is that all Soldiers
selected for MSG (Area NCO) and SGM in MOS 79T must have at least three
years field experience in recruiting retention or both."

23.  The applicant alleges that he was not given due process when he was
removed from the 1999 promotion list in accordance with the governing
regulation.  He states that there was no DA Form 4187, Personnel Action,
on file in his personnel records initiating or denying his promotion; he
was never counseled by his commander and no DA Form 4856, Developmental
Counseling Form, is on file documenting any counseling; and no
opportunity for rebuttal was given him which violated the provisions of
National Guard Regulation (NGR) 600-200.  According to a report of
investigation prepared by the office of the inspector general,

24.  There is evidence that the applicant was considered for promotion and
that National Guard Bureau All States Memorandum I98-0086, which was not
directive in nature, and which contained the statement, in response to a
question, "all eligible Soldiers will be considered for promotion unless
they are formally denied consideration," was complied with.  The evidence,
communications between the Office of the Inspector General and the
applicant bear this out.  The applicant was reminded that in previous
correspondence/communications with him, [correspondence apparently
addressed to the applicant on 11 May 1999 and 5 October 2001, which the
applicant did not include with his request], the Office of the Inspector
General had determined and notified him that DEARNG Recruiting and
Retention Policy #98-04 was valid and based on the contents of this policy,
he did not meet the requirement for promotion.  This, the Office of the
Inspector General stated, was the apparent reason he [the applicant] was
found to be not eligible for selection and promotion and the next eligible
Soldier on the list was selected.
25.  In the processing of this case, an advisory opinion was requested of
the Departments of the Army and Air Force National Guard Bureau, Chief,
Personnel Division.  The Chief, Personnel Division, provided this Board an
opinion on 23 June 2005.

26.  When the applicant's request was reviewed/analyzed by the personnel
division, it disagreed with the applicant's contention that he had been
removed from the promotion list. The Chief, Personnel Division, stated that
no evidence of his removal from the promotion list was found in his
Official Military Personnel File.  The applicant's allegation that his
commander never counseled him and that neither a DA Form 4187 nor a DA Form
4856 were found documenting this counseling was confirmed.

27.  The Chief, Personnel Division, in his opinion, stated that NCOERs
given the applicant as a sergeant first class reflected outstanding rating
evaluations for the duty position of Readiness NCO, Recruiting and
Retention NCO, Platoon Sergeant of an Air Ambulance, and Flight Operation
Chief.  According to the evaluations, the applicant met height and weight
standards, passed all of his Army Physical Fitness Tests and received
awards.

28.  The opinion was coordinated with the command sergeant major of the
Delaware Army National Guard.  The applicant, the opinion states, requested
transfer and it was granted on 1 February 2000.  He requested transfer when
he realized that he could not be promoted to master sergeant in the MOS
79T.  He reverted back to the MOS 91B.  The opinion also states that the
applicant was also considered for promotion in the MOS 91B but he could not
be promoted to master sergeant in this MOS either because there was no AGR
position into which he could be promoted.

29.  The opinion contained a reference to a question that had been asked
of the applicant.  Had he received any recruiter badges?  The Delaware
Army National Guard had stated that the only badge that the applicant had
received was the Senior Recruiter Badge due to the fact that he had only
been assigned as the Strength Maintenance NCO for the period 15 December
1997 through 31 January 2000.

30.  The opinion was further coordinated with the Personnel Policy and
Readiness Division, National Guard Bureau.  The Personnel Policy and
Readiness Division stated they did not agree with approving the applicant's
request.  Promotions, this division stated, are based on the availability
of positions to be promoted into.
31.  The National Guard Bureau recommended disapproval of the applicant's
request based on the recommendation made by the Personnel Policy and
Readiness Division.

32.  The advisory opinion was provided to the applicant on 29 June 2005,
for his information and possible rebuttal prior to consideration of his
case by the Board.

33.  On 20 July 2005, the applicant responded by submitting a rebuttal to
the advisory opinion.  In his rebuttal, the applicant states:

      a.  the command sergeant major missed the key point of his complaint
and his request for reconsideration.  The key point was that the other
Soldier had been erroneously selected for the position of Area NCO from the
promotion list.  The erroneous selection had been made on 11 December 1999,
approximately one and a half years prior to his request for transfer to
another unit in the MOS 91B.  At the time the selection board met, he was
on the 79T E-8 selection list with more points than the promoted Soldier
and, as he has demonstrated, he had never been removed from the list in
accordance with regulation.

      b.  his subsequent transfer had no impact on the decision by the
senior NCO career management board on 11 December 1999 which led to the
erroneous promotion of the promoted individual.  The delay in the promotion
of the other Soldier was due to circumstances regarding controlled grades
in the Delaware Army National Guard.  At issue is not when the promotion
occurred but when the selection was made.  Selection, the applicant states,
necessarily precedes promotion.  In this case, he states, promotion did not
occur until 20 December 2000.  The selection occurred on 11 December 1999.

      c.  that the question asked by the National Guard Bureau concerning
what recruiter badge he had received mystifies him.  The criteria of
having a Master Recruiter Badge did not become a requirement until a
subsequent NGR 601-1 was published on 7 November 2003.  The applicant
states that nowhere in any of the documents related to this case that he
obtained under the Freedom of Information Act did anyone in a leadership
position indicate in any way there was a criterion for possessing a Master
Recruiter Badge.  At the time of the meeting of the SNCOCMB, there was no
regulatory requirement for possession of a Master Recruiter Badge as a
prerequisite for promotion to E-8.  Therefore, the criterion is
irrelevant.

      d.  the opinion erroneously cites a version of NGR 601-1 regarding
requirement for selection and promotion when the previous version of the
regulation was the governing regulation.  It is improper to apply a
subsequent version of a regulation to this case.  The regulation to be
considered in any decision must be the regulation in force at the time of
selection by the SNCOCMB.

      e.  that the Army National Guard Bureau, Personnel Policy and
Readiness Division's, statement that they do not agree with approving his
request for reconsideration because a 91B AGR position was not available is
irrelevant.  His contention is that he should have been selected for
promotion on 11 December 1999 in the MOS 79T.  The National Guard Bureau
recommends disapproval, he states, based on a misconception that his
complaint is about a personnel action after 11 December 1999.  The
applicant reiterates that the key is when the selection took place, not the
subsequent date of the other Soldier's promotion.

34.  The applicant summarized his rebuttal by stating, ". . . all Soldiers
must be treated the same in similar circumstances.  As I stated in my
request for reconsideration; it is unjust and unfair, not to mention a
violation of Army/National Guard Regulations, state and federal statutes,
to apply different standards for similar individuals in identical
situations in matters concerning selection and promotion."

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant requested transfer when he
realized that he could not be promoted to master sergeant in the MOS 79T.
His request was approved and he was transferred in February 2000 for duty
in the MOS 91B.

2.  The evidence shows that a Soldier who was on the promotion list below
the applicant was promoted to master sergeant; however, this Soldier was
promoted to this rank with an effective date of 20 December 2000, after the
applicant had been reassigned, on 1 February 2000, from his duties in
recruiting and retention for duty in the MOS 91B.

3.  There is no evidence and the applicant provided none to support his
allegation that the promoted individual was selected for promotion on 11
December 1999; but, assuming that the promoted individual's selection was
made on 11 December 1999, the applicant did not have the required two-
years experience that had been established by the Recruiting and Retention
Manager of the Delaware Army National Guard; therefore, he [the applicant]
was ineligible for selection for promotion.
4.  On at least two occasions, complaints were made to the Office of the
Inspector General about alleged inconsistencies, violations of regulations,
in the promotion system.  These complaints were investigated.  In one
instance, it was determined that an erroneous promotion had been made,
based on an "honest mistake."  When a recruiting and retention position
came open in early 1999, a Soldier who was not first on the promotion list
was promoted.  The first person on the list in the MOS was not promoted
because of the lack of recruiting and retention experience.  The applicant
and another individual were also not promoted because they also lacked the
requisite recruiting and retention experience.  However, later, the first
person on the list was promoted with a backdated date of rank because he
had not been formally informed or counseled that he was being denied the
promotion as required by NGR 600-200, paragraph 11-38.  The applicant and
another individual, the Office of the Inspector General determined, had
been counseled about their not being promoted due to the lack of their
recruiting and retention experience.

5.  The applicable regulation, key evidence in this case, states that a
Soldier may be denied promotion based on misconduct, shortcomings in
personal and professional qualities and qualifications, or lack of
potential to serve at the next higher grade.  This action will be taken
when the individual deficiency is not sufficient to warrant a bar to
reenlistment or extension or elimination from service.  When approved,
the denial of consideration will be maintained with, and will expire
with, the promotion list for which it was initiated.

6.  There is no evidence in the available service records, and the
applicant provided none, to support his claim that he was removed from the
promotion list to master sergeant or that he was not counseled by the
appropriate individual when he was allegedly deemed ineligible for
promotion prior to the Senior NCO Career Management Board held on 11
December 1999.  The applicant's name first appears on the 1998 promotion
list to master sergeant in the MOS 79T.  The applicant's name was carried
forward and also appears on the 1999 promotion list to master sergeant.
The 1999 promotion list is dated 1 July 1999.

7.  Since the applicant was not removed from the promotion list, there was
no requirement to complete a DA Form 4187 or a DA Form 4856 to document
counseling pertinent to his removal from the promotion list; therefore,
this documentation was not found in his OMPF.

8.  The evidence shows that the correct regulatory guidance was used in
arriving in the promotion of the Soldier who was promoted ahead of the
applicant.  The applicant's assertion that it is improper to apply a
subsequent version of a regulation to this case is correct.  The regulation
to be considered, the applicant correctly states, in any decision, must be
the regulation in force at the time of the action.

9.  There is no evidence that the applicant received disparate treatment.
 In his application for reconsideration, the applicant states that the
SNCOCMB met on 11 December 1999.  On 11 December 1999, the applicant had
1 year, 11 months, and 27 days experience/assignment to a recruiting
retention position.  On the date the board convened, the applicant had
not completed the required two years experience by the date of the board.
 From the date of the applicant's assignment to a valid 79T, recruiter
and retention NCO position (15 December 1997) to the date he was
reassigned to other duties, in the MOS 91B (1 February 2000), the
applicant had a total of 2 years, 1 month and 17 days assignment to
a recruiter and retention NCO position.

10.  When the applicant submitted his own complaint [the second occasion]
to the DOD Hotline concerning a promotion issue, that a Soldier was
erroneously selected for promotion off the 1999 Delaware Army National
Guard promotion list to master sergeant and that it was he who should have
been promoted because he was fully qualified and eligible, investigation
revealed that he did not have the recommended "over 2 years recruiting and
retention experience."

11.  The applicant's allegation that the Delaware Army National Guard did
not operate in conformance with the State of Delaware Code, Section 103
and 104 which states that it shall conform to Federal statutes and
regulations relating to and governing the armed forces of the United
States, is without merit.  The Adjutant General is given authority to
publish rules and regulations for the government, discipline and exercise
of the Delaware Army National Guard.  Such rule shall conform, so far as
practicable, (emphasis added) to the rules, regulations and statutes of
the Department of Defense, the Army, the Air Force and the National Guard
Bureau of the United States.  This section also states that when such
rules and regulations have been promulgated and published by the Adjutant
General, they shall have force and effect of law.

12.  The DOD Inspector General had the opportunity, based on the
applicant's complaint via the Hot Line, to review operation of the
promotion system and the rules and regulations related to this system and
its functions and apparently did not detect a disparity.  It should be
noted that authority and latitude are given the Adjutant General to publish
rules and regulations to carry out the function of promoting Soldiers.
Such rules, the code requires, shall conform, so far as practicable,
(emphasis added) to the rules, regulations and statutes of the Department
of Defense, the Army, the Air Force and the National Guard Bureau of the
United States.

13.  The applicant alleges that the Delaware Army National Guard violated
the National Guard All States Memorandum I98-0086, dated 1 February 1998.
The applicant's allegation is without merit.  This memorandum was intended
to be informational and is non-directive in nature.  The issues addressed
were aimed at the full-time support force, AGR Soldiers, and military
technicians so that the information could be shared at all levels in the
State of Delaware.

14.  The applicant's allegation that there is a disparity between the
Delaware Army National Guard Recruiting and Retention Policy 98-04 and the
National Guard Bureau All States Memorandum with regard to the positions,
length and type of experience needed for promotion consideration is without
merit.

15.  The State's Adjutant General was given the latitude in States Code,
Section 103 and 104, to formulate rules and regulations for the efficient
operation of the Army National Guard's promotion system.  Recruiting and
retention policy 98-04 was determined to be valid, by the DOD Inspector
General, even though the length of experience recommended in All States Log
Number I97-0045, "at least three years field experience in recruiting,
retention or both" was reduced to two years by the Recruiting and Retention
Manager, Delaware Army National Guard. Paragraph 3 of All States Log Number
I97-0045 is specific.  It advises that States, "should consider the
importance of experience when making these selections.  Our guidance is
that all Soldiers selected for MSG (Area NCO) and SGM in MOS 79T must have
at least three years field experience in recruiting retention or both."

16.  Those underlined words/phrases in the paragraph above apparently were
taken literally.  This is apparent in view of the fact that the
experiential level was reduced from three years to two years, for the
selection of master sergeant and sergeant major in the MOS 79T, by the
recruiting and retention manager.

17.  The applicant's allegation that the Delaware Army National Guard
applied different standards for similar individuals in identical situations
in matters concerning selection and promotion is without merit.  When a
recruiting and retention position came open, the evidence shows that the
qualifications of all Soldiers who were on the list were reviewed.
Investigation revealed that the first person on the list was not promoted
because he and the number three person on the list did not meet the two
year, as opposed to the three year experience requirement suggested by the
National Guard Bureau.  The number two person on the promotion list was
also ineligible for promotion because she was "flagged."  Based on these
findings, the fourth person on the list was promoted.

18.  It is logical that the same standard was applied to the decision-
making process that was used in determining who should be promoted to
master sergeant from the list in January 1999 when the recruiting and
retention position came open.

19.  The applicant's assertion that a requirement for him to have a Master
Recruiter Badge can not be confirmed.  The National Guard Bureau merely
asked if the applicant had any recruiter badges.  Neither the question nor
the answer was related to a promotion requirement as indicated by the
applicant.

20.  The applicant's statement in his rebuttal that the criterion, to
have a Master Recruiter Badge, to be eligible for promotion to master
sergeant, is not contained in NGR 601-1 with a publication date of 15
September 1997 and, an inquiry made of the National Guard Bureau
determined that a revised NGR 601-1 is planned and is being coordinated;
however, a new, revised NGR 601-1 was not published on 7 November 2003 as
stated by the applicant.

21.  On the date that the applicant was reassigned, at his request, to
other duties within the Delaware Army National Guard, he was not eligible
for promotion in the MOS 79T.  The evidence shows that he voluntarily
requested the reassignment.  The evidence further shows that he was not
removed from the promotion list as he has contended; therefore, there is
an insufficient basis for his reinstatement to service in the active
Guard and his promotion to master sergeant at this time.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_SK____  _DRT____  _DA_____  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR2003087534 dated 16 December 2003.




                                  __       Stanley Kelley______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040007602                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/08                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.   192                |110.0300                                |
|3.   310                |131.0000                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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