RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 October 2005
      DOCKET NUMBER:  AR20040010188


      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             |
|     |Ms. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 promotion to colonel with a promotion effective
date the same as the approval date of his promotion selection board, with
entitlement to back pay and allowances.  He also requests reinstatement in
the rank of colonel or placement on the retired list in the rank of
colonel, with entitlement to all back pay and allowances.  He also requests
recalculation of his service date to include the 30 days of lost leave as a
result of his non-selection for extension beyond his 20 years active
Federal service (AFS) and reimbursement of the lost leave.  He further
requests adjustment to his dates of rank for major, lieutenant colonel, and
colonel, with entitlement to all back pay and allowances.  He also requests
cancellation of recoupment of separation bonus and reimbursement of all
funds collected and upgrade of his Meritorious Service Medal (MSM) to the
Legion of Merit (LOM).

2.  The applicant states that despite being selected for promotion to
colonel by a promotion board he was not promoted in the Pennsylvania Army
National Guard (PAARNG) in retaliation for ethical and moral stands taken
on controversial issues within his command.  His command refused to promote
him to colonel in retaliation for the services that he performed in
upholding Army values and made his last month in the military service
miserable.  His command abused its discretion and punished him for "doing
the right thing".  He lost several days leave as the result of the late
notice for non-selection for continued military service.

3.  The applicant also states that he left the active Army in October 1992
as the result of being passed over for promotion to major.  He has been
advised that as a result of a Federal court case, the selection criteria
used for his initial promotion board for major was illegal.  He was later
promoted to major, but requests his promotion reflect the earlier date
(1991) and adjustment of all subsequent promotions thereafter, with
entitlement to all back pay and allowances.

4.  He further states that in January 2004, while processing out of the
Army, he was advised that he was going to lose in excess of 30 days leave.
Based on the late notice given to him on his non-selection for extension
under the Active Guard Reserve (AGR) process, he was unable to use all the
leave he had in excess.  Being the only full-time Judge Advocate for the
Commonwealth of PA, he was unable to use all the leave he had accrued and
he had in excess of 60 days leave.  It is only fair that he be paid for
this lost leave and that he receive credit calculated at the departure
point.  He could not cash in this leave based on the fact that he had
already cashed in 60 days upon his initial departure from the military in
October 1992.
5.  He further states that as a result of his non-selection to major in
1991, he voluntarily separated from the active Army in October 1992.  For
this reason and the financial difficulty it has now placed on his family,
he requests an immediate cancellation of the recoupment of $49,238.28
Special Selection Benefit he accepted.  At the time of his acceptance of
this separation allowances, he never expected he would be able to return to
an active status.  He entered the Reserve (National Guard) as required and
was selected as a full-time Title 32 AGR Soldier.  He did not feel that he
violated the terms of this separation allowance, but now that he has
reached retirement eligibility, the government is collecting this amount
back at the full amount paid and not less taxes paid.  He also states that
he was recommended for award of the LOM, but this recommendation was
denied.  This award should be reconsidered based upon his entire service
record and contributions he made to the United States military forces.

6.  The applicant provides a statement in his own behalf, copies of his
official military personnel file, and the 2002 Colonel Reserve Components
Selection Board (RCSB) results.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed in the
United States Army Reserve (USAR), Judge Advocate General's Corps, as a
second lieutenant, effective 18 May 1980.

2.  He entered on active duty effective 8 January 1984.  He was promoted to
captain effective 1 August 1984.  He was considered and not selected for
promotion to major by the Fiscal Year (FY) 1991 Promotion Board.

3.  He was released from active duty (REFRAD) under the Fiscal Year 1992
Voluntary Separation Incentive (VSI) Program effective 30 September 1992.
He received a Special Separation Benefit of $49,238.28.  He was transferred
to the USAR Control Group (Individual Ready Reserve).

4.  He was appointed in the PAARNG effective 16 October 1992.

5.  He was extended Federal Recognition and promoted to major in the PAARNG
effective 21 July 1993.  He was promoted to major in the USAR effective
21 July 1993, with a date of rank of 1 October 1992, the day after his
REFRAD.

6.  He was promoted to lieutenant colonel in the PAARNG effective 16 April
1998 and extended Federal Recognition effective 24 June 1998.

7.  He was considered and selected for promotion to colonel by the 2002
RCSB with a promotion eligibility date of 23 June 2003.

8.  On 3 April 2003, he was awarded the MSM for outstanding military
service to the PAARNG for the period 1 May 2002 through 31 July 2002.

9.  On 11 April 2003, the National Guard Bureau (NGB) was granted authority
from the Army to conduct AFS Tour Continuation Boards to extend Active
Guard Reserve, warrant, and commissioned officers beyond 20 years and one
month of AFS.

10.  On 1 May 2003, the applicant requested retention beyond 20 years of
AFS.  His records do not show the outcome of this request.

11.  He was separated from the PAARNG in the grade of lieutenant colonel,
effective 31 January 2004, under the provisions of National Guard
Regulation 635-100, 5a(3) Resignation – Reinforcement Retired Reserve.  He
was transferred to the Retired Reserve.

12.  His ARNG Retirement Points History Statement dated 23 April 2004 shows
he completed 20 years, 8 months, and 13 days of AFS as of 31 January 2004
for retired pay at age 60.

13.  In the processing of this case, an advisory opinion was requested of
the Chief, Personnel Division, Departments of the Army and the Air Force,
National Guard Bureau (NGB).  An advisory opinion was provided on 3 March
2005.  In this advisory opinion, the Chief, Personnel Division, NGB, stated
that the applicant was requesting the Army Board for Correction of Military
Records (ABCMR) to go back and overrule a decision which The Adjutant
General (TAG) of the state of Pennsylvania made not to promote him to
colonel, based on assumptions of retaliations.  In accordance with National
Guard Regulation
600-100, Chapter 8, paragraph 8-1, the promotion authority for all ARNG
officers is the state TAG.  If the TAG chooses not to promote an officer,
he or she is not obligated to do so.  The Chief also stated that in
reference to adjusting the applicant's date of rank for major to 1991, the
NGB does not have jurisdiction over active duty promotions.

14.  The applicant alleges to have lost 30 days accrued leave that he was
unable to take prior to his separation and which he was unable to receive
payment for.  The applicant provided no documentary evidence to support
this allegation of his loss.

15.  The advisory opinion further stated that on the matter to upgrade his
departure award from the MSM to the LOM, in accordance with Army Regulation
600-8-22, chapter 1, awards are the commander's program, and the commander
is the one who decides what award the Soldier deserves based on
performance.  Per paragraph 1-21 that provides for recognition upon
retirement for period of service, each individual approaching retirement,
may be considered for an appropriate decoration based on his/her rank,
years of service, degree of responsibility, and manner of performance.

16.  The NGB Officer Policy Division, concurred with the Personnel
Division's recommendations and recommended denial of the applicant's
requests for
promotion to colonel, retirement in the rank of colonel, and upgrade of the
MSM to a LOM.  The NGB, Officer Policy Division, also concurred with the
Personnel Division and recommended that the applicant receive payment for
30 days leave lost due to late notification of non-selection for retention
on active duty.  It was also recommended that the ABCMR determine if the
active duty component can adjust his date of rank for major to 1991.

17.  The opinion was forwarded to the applicant for acknowledgment/rebuttal
on 8 March 2005.  In his rebuttal, dated 17 March 2005, the applicant
stated that he now asks the Board to look beyond the "system", which in his
opinion has hampered and even assisted in this miscarriage of justice, and
look to the process and intent of the ARNG as it was reorganized during and
after World War I.  The NGB has in effect taken the easy road and said it
is a command prerogative issue and they are not going to look behind
decisions made.  The NGB is composed of officers from various state ARNG
units and has a great deal of input from the states.  It does not always
serve as an independent agency.  He does not know the role of the Chief,
Personnel Division, NGB, what state she may have come from or what input
she got from the PAARNG in making these decisions.

18.  The applicant also stated that as a federally recognized officer,
trained, educated, and commissioned by the United States of America, there
is a means to promote him to colonel in whatever status, even as a member
of the IRR.  He has been informed this is clearly within the purview and
authority of the Board.  The matters he raised in his request, for the most
part, have never been investigated and no action has been taken to resolve
the matters.  Even when they have been investigated and substantiated,
promotions have occurred and no adverse action has been taken.  Inspectors
General have been relieved at the whim of the command and wrong doers
elevated to the highest levels of command.  He requests that based upon the
abuse of the individuals empowered to promote him that this promotion be
reevaluated and that he be promoted based upon the merits, record, and
future potential.  He further asks that based upon these same reasons and
the retaliatory behavior of the command, that he be reconsidered for award
of the LOM as his retirement award.  He has worked hard during his 20+ year
career and had several significant accomplishments, which his officer
evaluation reports will attest to.  He asks that neutral and detached
individuals consider his worthiness for this honor at the end of his
career.

19.  The applicant further stated that he asks that a review of all federal
funding of the PAARNG be investigated in order to assure compliance with
Federal guidelines and dictates, especially in terms of personnel actions.

20.  The applicant requested correction of his records to show award of the
LOM. There are no orders or other evidence authorizing award of this
decoration to the applicant.  In the absence of a proper award authority
for this decoration, the applicant may request an upgrade of the MSM to the
LOM under the provisions of Section 1130 of Title 10, United States Code.
The applicant has been notified
by separate correspondence of the procedures for applying for this award
under Section 1130 and, as a result, it will not be discussed further in
this Record of Proceedings.

21.  National Guard Regulation (NGR) 600-100 prescribes the policies for
promotion and promotion consideration of ARNG officers.  Paragraph 8-1 of
this regulation specifies that promotion of officers in the ARNG is a
function of the states.  ARNG commissioned officers receive mandatory
consideration and special selection board (SSB) consideration for promotion
as a Reserve commissioned officer of the Army and the provisions of Army
Regulation 135-155 will apply.  The regulation also specifies that an ARNG
commissioned officer who is selected for promotion as a Reserve
commissioned officer resulting from a mandatory board or SSB may be
extended Federal Recognition in the higher grade subject to the condition
that the officer is promoted, in State status, to fill an appropriate
position vacancy in the higher grade.

22.  NGR 635-100 prescribes the policies and procedures for the separation
of commissioned officers of the ARNG.  This regulation specifies that an
officer may tender a resignation to the state TAG.  If accepted, the state
TAG will publish orders separating the officer.  An officer in the grade of
lieutenant colonel or below will be removed from an active status 30 days
after completion of 28 total years of service and may be transferred to the
Retired Reserve if they are qualified and apply therefore.

23.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve and ARNG officers.  This regulation specifies that the
state TAG is the promotion authority for all ARNG officers who are on a
promotion list resulting from a mandatory promotion board.

24.  In previous cases such as this, the Chief, Promotions Branch, AHRC –
Alexandria, has advised that the Deputy Chief of Staff, G-1, has published
guidelines regarding consideration by special selection boards (SSB).  In
part, this guidance stated that a SSB may be convened in the case of an
officer who was not selected by a promotion selection board and the
Memorandum of Instructions for that promotion selection board contained pre-
September 1999 Equal Opportunity promotion instructions.  This guidance
also imposed a time limit on requests for promotion reconsideration based
on the pre-September 1999 Equal Opportunity promotion instructions.
Specifically, the release date of the results for the promotion selection
board, which considered but did not select the officer, must be within 6
years from the date that the affected officer submitted his request for
promotion reconsideration to the US Total Army Personnel Command.  The
guidance also advised that after review of the case, the officer was free
to proceed directly to a court of appropriate jurisdiction.

25.  In previous cases such as this, relief was granted based on the cases
of two officers who successfully obtained relief after filing suit in
Federal court, and in which the relief was granted based on equity.  In
these cases the promotion reconsideration boards to be convened under 1998
criteria were directed to issue replacement instructions regarding equal
opportunity as follows:  “7.  Equal Opportunity. The Army is committed to
unbiased consideration of officers for promotion.  You may not consider the
race, gender or ethnic background for an officer in the course of your
review and selection of officers for promotion.  For purposes of this
board, the foregoing guidance is required and takes precedence over the
guidance contained in DA Memorandum 600-2, para A-10c(2) & (3).  You will
not refer to DA Memorandum 600-2, para A-10c(2) & (3) or use the procedures
for review described therein”.  The previous cases in which relief was
granted were limited to the same promotion board involved in the settlement
agreement.

26.  Title 10, United States Code, section 628 states the Secretary may
prescribe in the regulations the circumstances under which consideration by
a special selection board may be provided for under this section of Title
10, including the following:  (A) the circumstances under which
consideration of a person's case by a special selection board is contingent
upon application by or for that person; and (B) any time limits applicable
to the filing of the application for such consideration.
27.  Military Personnel (MILPER) message 03-170, dated 12 May 2003,
outlines the criteria set by the Secretary of the Army under which
consideration by a special selection board may occur.  These criteria
include the time limits applicable to the filing of an application.  In
accordance with paragraph 5 of this message, applications for special
selection boards received within one year of the date of the message "may
be based on original board results that were released within 6 years of the
application".

28.  Army Regulation 600-8-10, prescribes the policies and procedures for
leaves and passes.  Paragraph 2-4d of this regulation specifies that
payment of accrued leave is made per section 501b, Title 37, United States
Code for leave earned by a Soldier of a Reserve Component, Retired Reserve,
or retired member of the Regular Army while serving on active duty in
support of a contingency operation. By law, payment of accrued leave is
limited to 60 days one time during a military career.

29.  NGR 37-104-3, prescribes the policies and procedures for the payment
and collection of Federal active and inactive duty military pay entitlement
and allowances for ARNG Soldiers.  Paragraph 7-2b specifies that claims for
either in or out of service military pay, resulting from the correction of
records by the Army Board for Correction of Military Records will be based
on the DD Form 149 received from the Board.

30.  The DOD Directive Number 7050.6, dated 20 November 1989, as amended in
reissued versions, dated 3 September 1992, 12 August 1995, and on 23 June
2000, cover the Military Whistleblower Protection Act provisions contained
in Title 10 of the United States Code, section 1034 (10 USC 1034).  The
foregoing directive indicates that it is DOD policy that no person shall
restrict a member of the Armed Forces from lawfully communicating with a
Member of Congress, an IG, or a member of a DOD audit, inspection,
investigation, or law enforcement organization; that members of the Armed
Forces shall be free from reprisal for making or preparing to make lawful
communications to a Member of Congress, an IG, or a member of a DOD audit,
inspection, investigation, or law enforcement organization; and that no
employee or member of the Armed Forces may take or threaten to take an
unfavorable personnel action, or withhold or threaten to withhold a
favorable personnel action, in reprisal against any member of the Armed
Forces for making or preparing a lawful communication to a Member of
Congress, an IG, or a member of a DOD audit, inspection, investigation, or
law enforcement organization.

31.  The directive also provides that a member or former member of the
Armed Forces who has filed an application for the correction of military
records alleging reprisal for making or preparing a protected disclosure
may request review by the Secretary of Defense of the final decision on
such application.  The request for review must be in writing and include
the member’s name, address, telephone number, copies of the application to
the Board and the final decision of such application, and a statement of
the specific reasons that a member is not satisfied with the decision.  A
member or former member of the Armed Forces must file the request for
review of the final decision within 90 days of receipt of the decision.
The decision of the Secretary of Defense is final.  Requests based on
factual allegations or evidence not previously presented to this Board
shall not be considered.  New allegations or evidence must be submitted
directly to the Board for reconsideration under procedures established by
the Board.

32.  Army Regulation 20-1 provides, in pertinent part, that anyone has the
right to register complaints orally or in writing with an Army IG
concerning matters of DA interest.  In exercising this right, the
complainant will be free from restraint, coercion, discrimination,
harassment, or reprimand.  Soldiers will be encouraged to discuss their
problems or grievances first with their commanding officers, as provided by
Army Regulation 600-20.  However, persons desiring to submit a complaint
directly to an IG at any level, but who do not wish to discuss the matter
with their commanding officer or other members of the chain of command,
will be permitted to do so.  Any type of disciplinary or other adverse
action taken against an individual for registering a complaint, except when
fraudulently made, is prohibited.

33.  Army policy and the Department of Defense Military Pay and Allowances
Entitlements Manual (DODPM), based on Public Law 102-190, 5 December 1991,
as amended, prescribes the qualifications for entitlement to readjustment
benefits for certain voluntarily separated members.  The Special Separation
Benefit and the VSI (Voluntary Separation Incentive) are available to
members who are retainable on active duty and prior to selection for an
involuntary separation, but who voluntarily separate from active duty under
the provisions of the voluntary separation incentive program in support of
the Army drawdown.

34.  Title 10, United States Code, section 1174a specifies that a member of
an armed force is eligible for voluntary separation and may request
separation under the Special Separation Benefits programs.  The individual
must have served on active duty for more than 6 years prior to enactment of
this law, must have served at least 5 years of continuous active duty
preceding separation.  A member of an armed force is eligible for voluntary
separation under this program if the member has not been approved for
payment of the VSI and must meet such other requirements as the Secretary
may prescribe, i.e., not in a shortage specialty and agreement to serve in
the Ready Reserve for not less than 3 years in addition to any remaining
statutory service obligation following separation from active duty.  The
Secretary concerned may prescribed this program to apply to any regular
officer or warrant officer or an armed force, a regular enlisted member of
an armed force, or a member of an armed force other than a regular member.
The SSB is a lump sum separation pay equal to 15 percent of the product of
the years of active service and 12 times the monthly basic pay authorized
at the time of separation.

35.  Title 10, United States Code, section 1175(3)(A) specifies that a
member who has received the voluntary separation incentive and who
qualified for retired pay shall have deducted from each payment of such
retired pay so much of such pay as is based on the service for which he/she
received the voluntary separation incentive until the total amount deducted
equals the total amount of voluntary separation incentive received.  If a
member elected to have a reduction in voluntary separation incentive while
entitled to basic pay for active or Reserve service, the deduction under
this section shall be reduced accordingly.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the advisory opinion rendered in this case by the NGB,
the applicant is not entitled to compensation for the 30 days lost leave
the applicant alleges to have lost.  The applicant states that he could not
cash in this leave because he cashed in 60 days when he was REFRAD in 1992.
 By law, payment for accrued leave is limited to 60 days one time during a
military career.
Therefore, based on any payment for 60 days accrued leave and absent
evidence to the contrary, he is not entitled to payment for the 30 days
leave he allegedly lost due to the late notification of his non-selection
for retention by the PAARNG.  The ABCMR is not an investigative agency and
the Board acts on cases based on the evidence presented by applicants.

2.  The applicant’s contention that despite being selected for promotion to
colonel he was not promoted in the PAARNG, based on his ethical and moral
stand taken on a variety of issues, has been noted.  However, the applicant
has not shown that his non-promotion to colonel by the PAARNG was improper
or erroneous.  It has also not been shown that his non-promotion by the
state TAG operated outside military regulation or contrary to Federal law.
Amidst the allegations by the applicant, it has not been satisfactorily
shown that the applicant's stand on controversial issues within his command
caused him not to be promoted to colonel in the PAARNG.
3.  The evidence of record shows the applicant elected to resign from the
PAARNG one year after his request for retention beyond 20 years of AFS.  He
was separated in the rank of lieutenant colonel; therefore, he was
appropriately transferred to the Retired Reserve in the rank of LTC.

4.  The applicant's contention concerning non-selection for promotion to
major in 1991 has been noted.  However, MILPER message 03-170, dated 12 May
2003, states applications for special boards received within one year of
the date of the message may be based on original board results that were
released within 6 years of the application.  Applications received more
than one year after the date of the message relating to board results that
were released more than one year before the date of the message will be
treated as untimely, absent compelling justification.

5.  Although through a settlement agreement before the U. S. District Court
others were granted relief for reconsideration for promotion through an SSB
representing pre-September 1999 promotion selection boards, it is noted
this decision operated only as the law for those particular boards.  As a
matter of equity this Board has only extended relief to officers adversely
affected by the same promotion board.

6.  The Board supports the DoD policy of unrestricted communication with
Members of Congress and Inspector General offices, as well as the
protection from reprisal against those who make or prepare to make such
communications. When such reprisals occur, they constitute an injustice.
However, none of the applicant's contentions substantiated that his stand
on controversial issues within his command was the reason for his non-
selection for promotion, and he was not granted Whistleblower status.
Accordingly, his case was considered by this Board as any other application
alleging error or injustice as provided by Title 10, United States Code,
section 1552.

7.  The applicant is not entitled to cancellation of recoupment of his
separation bonus now that he has reached retirement eligibility.  By law,
any voluntary separation incentive payment is subject to deduction from
retired pay until such pay based on the service for which a separation
incentive payment was received is deducted.  Therefore, there are no
provisions for cancellation of his recoupment action and reimbursement of
all monies collected thus far.

8.  The applicant’s reference to case law has been noted; however, he has
not shown error or injustice in his case based on his reference.

9.  The applicant's request for an investigation of all federal funding of
the PAARNG does not fall within the purview of this Board.

10.  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

__TSK___  _PM____  __CAK___  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 for correction of the
records of the individual concerned.




                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010188                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/13                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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