RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 December 2005
      DOCKET NUMBER:  AR20040010883


      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. Robert J. McGowan             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Leonard G. Hasssell           |     |Member               |
|     |Mr. Michael J. Flynn              |     |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:

      a.  His retirement be voided and he be returned to active duty in the
Active Guard Reserve (AGR) program.

      b.  Promotion to Sergeant Major (SGM/E-9).

      c.  Cleansing of his Official Military Personnel File (OMPF) by
removing a 14 October 2001 letter of reprimand, unspecified counseling
statements written in 2001, and the reviewer non-concurrence with two Non-
Commissioned Officer Evaluation Reports (NCOER) for the periods 199904-
200003 and 200004-200103.

2.  The applicant states he is a former whistleblower who was retaliated
against in 1994.  He submitted a DD Form 149 (Application for Correction of
Military Record) and, on 12 July 1998, the Army Board for Correction of
Military Records (ABCMR) corrected the injustices done to him.  Because of
the ABCMR's action on his behalf, the New Mexico Army National Guard
(NMARNG) has again retaliated against him by:

      a.  Denying him attendance at the Sergeants Major Academy (SMA) when
he was at the top of the E-9 promotion list;

      b.  Adding a statement of non-concurrence to two NCOERs for which he
received successful ratings;

      c.  Receiving a series of negative counseling statements in 2001 and
a nonjudicial punishment (NJP) under Article 15, Uniform Code of Military
Justice on 5 May 2001;

      d.  Suspending his security clearance on 17 July 2001, then
reinstating it on 22 January 2002 after he submitted his retirement papers;
and

      e.  Forcing his retirement under threat of disciplinary action.
3.  The applicant provides:

      a.  A copy (incomplete) of a 12 April 1999 Memorandum from NMARNG
with subject:  Instructions for 1999 Command Sergeant Major Promotion
Board.  Also provided is a copy of a document entitled "Sergenats (sic)
Major Promotion List."

      b.  A copy of a 28 November 2000 Memorandum from the NMAG (New Mexico
Adjutant General) with subject:  Inquiry Concerning Attendance to the
Sergeant's (sic) Major Academy . . ."

      c.  A copy of Orders 224-010, NMARNG, dated 12 August 2002, assigning
an NCO from Operations Sergeant (paragraph 103, line 05) to Operations
Sergeant (paragraph 103, line 05) to perform duties as Senior Operations
NCO.  Note:  This NCO was promoted to SGM.

      d.  A copy of his NCOER for the period 199904-200003, plus a DA Form
200 (Transmittal Record) with remarks attributed to the reviewer stating,
"LTC [Senior Rater]/MAJ [Rater] – This is unsat.  You complained about him
[applicant] for a whole year then he is rated sat/successful down the line.
 Pull your counseling statements and tell the truth."

      e.  A copy of his NCOER for the period 200004-200103, plus a document
entitled "Reviewers [sic] Nonconcurrence" which states, "During the rating
period [applicant] failed a Physical Security Inspection conducted by MAJ
Sxxxxxxxxxx of HQ STARC, NMAG-APO-MS.  This NCO has received numerous
verbal counselings by his chain of command, but the chain of command failed
to document these counselings."  Also included with this NCOER is a 28
March 2002 Memorandum of Appeal from the applicant in which he appeals the
reviewer's nonconcurrence.

      f.  Copies of two DA Forms 4856 (Developmental Counseling Form) with
his nonconcurrence and various pro and con DA Forms 2823 (Sworn Statement)
from witnesses.

      g.  A copy of DA Form 2627 (Record of Proceedings Under Article 15,
UCMJ) wherein he was offered nonjudicial punishment (NJP) for:  disobeying
the lawful order of his superior commissioned officer by failing to report
for work on 29 March 2001; leaving his training post (Fort Bliss, Texas) on
28 March 2001 and traveling to Juarez, Mexico, an off limits area; and
conduct unbecoming an
NCO in the presence of junior enlisted personnel.  The NJP was offered
on/about 5 June 2001.  On 6 June 2001, the applicant provided a written
response to the proposed NJP and requested it be withdrawn.  He stated he
misunderstood the order to report for duty.

      h.  A 14 October 2001 Administrative Letter of Reprimand (LOR) issued
to the applicant for the misconduct listed in the NJP above.  The LOR is
supported by a 31 May 2001 Memorandum For Record with subject:  Summary of
Interviews [taken from Soldiers present during the incident that gave rise
to the unbecoming conduct allegation].  The applicant acknowledged the LOR
on 19 October 2001.

      i.  A 17 July 2001 memorandum suspending the applicant's access to
classified information.

      j.  A 22 January 2002 memorandum reinstating the applicant's security
access.

      k.  A 28 August 2001 memorandum from the applicant requesting
withdrawal of his retirement request.

      l.  A 2 October 2001 memorandum from the NMAG disapproving the
applicant's request to withdraw his retirement application.

      m.  A 12 July 1998 memorandum from the NGB implementing the 3 June
1998 decision of the ABCMR in the applicant's previous case.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the same corrections sought by the
applicant.

2.  Counsel states, in effect, the ABCMR has broad authority to correct
military records.  He also points out that the applicant made a "protected
communication with a member of Congress" after being told that he could not
enroll in the SMA.

3.  Counsel provides a 23 August 2005 rebuttal to a 26 July 2005 National
Guard Bureau (NGB) advisory opinion.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s complete military records are not available to the
Board.  This case is being considered using records which primarily consist
of documents provided by the applicant.

2.  The applicant is a retired Master Sergeant (MSG/E-8) formerly assigned
to the NMARNG.  He retired on 1 August 2002 from the AGR program with more
than 20 years of active Federal service.

3.  On 3 June 1998, the ABCMR found that the applicant had been reprised
against for making a protected communication to a member of Congress in
1994. The Board's finding was based upon a Department of the Army Inspector
General (DAIG) report substantiating acts of retribution against the
applicant.  The Board directed remedial action taken to restore the
applicant to his previous condition.  This was accomplished.

4.  The applicant provided a copy of one page of a Sergeants Major
Promotion List, dated 15 July 2000, upon which his name is listed first
under MOS (military occupational specialty) 14Z.  The Army National Guard's
Virtual Armory website explains the promotion process.

      a.  NCO promotion selection boards convene annually in each state for
each grade from Sergeant through SGM.  The boards determine, through a
combination of administrative and performance qualification points and
leadership evaluation points, the best qualified Soldiers who have the
demonstrated qualities, qualifications and potential to serve at the next
higher grades.  Soldiers selected for promotion will also attend the
Noncommissioned Officer Education System course required for the rank.
Boards consider all eligible Soldiers who are participating satisfactorily
in the active ARNG in the next lower grade, have a high school diploma or
equivalent, are qualified in the promotion MOS, do not decline
consideration, and who meet established grade criteria.

      b.  The State promotion list for each grade lists Soldiers ranked
best qualified to least qualified in each MOS on the list.  The promotion
selection objective for each MOS indicates the Soldiers who may expect to
be promoted in that MOS during the next 12 months, the approximate life of
the list.  The selection objectives for each MOS on the promotion list are
also the States’ priority of training list for NCOES courses.  The
promotion list shows which
Soldiers are military technicians and which are in Active Guard Reserve
status.  This is one of the factors used to help determine which Soldiers
are eligible and available for the assignments, among other factors.  When
vacancies are identified to fill through promotion, the individual ranked
highest on the list in the required MOS who is eligible and available for
the assignment, is offered the position.  Soldiers are promoted upon
assignment provided they are in a promotable status and enrolled or
scheduled to be enrolled in the appropriate level NCOES course.

5.  Although not a part of the record submitted to the ABCMR by the
applicant, he apparently submitted an inquiry to the NMARNG concerning
attendance at the SMA.  On 28 November 2000, he received a response from
the NMAG stating, in essence, the State follows NGB standards and has not
sent anyone on the SGM promotion list to the SMA without an existing E-9
vacancy to be filled.  The response cites chapter 11, NGR 600-200 which
states Soldiers on the E-9 list cannot be promoted off the list without SMA
credit or enrollment.  The NMAG stated there were no current or projected E-
9 AGR positions in the applicant's MOS, therefore he could not be sent to
the SMA.

6.  The applicant received an NCOER for the period 199904-200003.  The
rater and senior rater characterized the applicant's performance as
"satisfactory."  On an unknown date, the reviewer penned a note to the
raters in the remarks section of a DA Form 200 (Transmittal Record)
stating, "This is unsat. You complained about him for a whole year then he
is rated sat/successful down the line.  Pull your counseling statements and
tell the truth."  However, in Part IIe, the reviewer checked that he
concurred with the rater and senior rater evaluations.  There is no
evidence the DA Form 200 is a part of the applicant's official record.

7.  The applicant received an NCOER for the period 200004-200103.  Again,
the rater and senior rater characterized the applicant's performance as
"satisfactory." This time the reviewer, on 4 August 2001, wrote a formal
nonconcurrence saying, "During the rating period [applicant] failed a
Physical Security Inspection conducted by MAJ S of HQ STARC, NMAG-APO-MS.
This NCO has received numerous verbal counselings by his chain of command,
but the chain of command failed to document these counselings."  In Part
IIe of the NCOER, the reviewer checked "nonconcur with rater and/or senior
rater eval."

8.  On 28 March 2002, the applicant appealed his NCOER for the period
200004-200103 to the NMAG based upon substantive inaccuracy.  He argued
that he only saw the reviewer, a "part time Guardsman," once a month and he
"didn't
have no (sic) knowledge of what was going on."  He stated the "inspection"
he allegedly failed was actually an assistance visit which he, himself, had
requested. There is no record of any action taken on the appeal.

9.  On an unknown date in April 2001, the applicant received a written
counseling for failing to complete a list of tasks he had been given
related to establishing a tactical operation center (TOC).  On 16 April
2001, the applicant responded in writing stating that everything was being
"pushed down [his] back[s] at the last minute."  He stated, contrary to the
counseling, the TOC was operational except "the only thing not operational
was the computer in the TOC" which he blamed on someone else.

10.  On 24 April 2001, the applicant received a written counseling
statement for failing to obey the order of a superior commissioned officer
not to remove an empty packing crate from the armory grounds.  The
counseling indicated the applicant stated he was not going to obey and then
he disparaged the officer who had directed him to leave the crate.  In
response, the applicant stated "I never used that [disparaging] word
against Major W and there was (sic) 3 other officers from Santa Fe present
when I was being directed by LT H and was never directed by Major W."

11.  On 5 May 2001, the applicant was offered NJP for:  failing to report
to work on 29 March 2001 in direct violation of a lawful order given him by
a superior commissioned officer; for leaving his training post on 28 March
2001 and going to Juarez, Mexico, a location placed off limits by the
Commanding General of Fort Bliss; and for, in essence, conduct unbecoming
an NCO.

12.  On 6 June 2001, the applicant requested in writing the NJP be
withdrawn.  He stated he misunderstood the order to report "immediately"
back to the armory because "had [he] immediately reported back to the
armory, there was no one to whom to report."  He explained his "alleged"
trip to Juarez by referencing paragraph 4 of the 16 April 2001 Fort Bliss
Policy Letter.  Paragraph 4 stated, "Commanders and directors will ensure
widest possible dissemination of this policy letter and post it on all
official bulletin boards."  As for conduct unbecoming an NCO, he explained
he was "an NCO (SOLDIER) first, and have been for over 30 years" and did
not exhibit conduct unbecoming.

13.  On 7 June 2001, the applicant refused NJP and demanded trial by court-
martial.  There is no record of court-martial charges being preferred
against him. Instead, the applicant was issued an administrative letter of
reprimand, dated 14 October 2001, for misconduct between 27-29 March 2001.
He was
specifically reprimanded for:  going to Juarez without obtaining a pass or
written authorization which was against policy issued by the Commanding
General of Fort Bliss on 1 January 1999; for failing to expeditiously
return to the Rio Rancho (New Mexico) Armory as directed; and for failing
to properly supervise subordinates.  The applicant acknowledged receipt of
the reprimand and indicated he would provide a written response.  A copy of
his response, if he made one, is not available.

14.  During an investigation into the circumstances surrounding the
incidents for which the applicant was first offered NJP, the Headquarters,
NMARNG directed the applicant's security clearance be suspended on 17 July
2001.  After the situation was resolved, the applicant's clearance was
restored on 22 January 2002.

15.  On an unknown date, the applicant submitted an Application for
Voluntary Retirement (DA Form 2339) seeking to retire on 1 August 2002.  On
28 August 2001 he submitted a request to withdraw his voluntary retirement
citing:  his desire to "complete [his] tour as an E-8 remaining (sic);" an
impending shoulder surgery on 6 September 2001 and a need for recovery
time; and a pending court-martial.  On 2 October 2001, his request was
disapproved as not in the best interest of the Government and because he
had not shown that the disapproval would create an extreme hardship.

16.  The applicant apparently submitted a new DA Form 2339 dated 9 October
2001.  This request sought a separation date of 31 July 2002 and a
retirement date of 1 August 2002.

17.  The applicant was honorably retired by reason of sufficient service
for retirement on 31 July 2002.  His DD Form 214 (Certificate of Release or
Discharge From Active Duty) shows he had 20 years and 14 days of creditable
active Federal service and 9 years, 9 months, and 18 days of inactive
service.  He retired as a MSG/E-8.

18.  In the processing of this case, an advisory opinion was obtained from
the Office of The Chief, Personnel Division, NGB.  The opinion takes issue
with the ABCMR's authority to act in National Guard cases and recommends
disapproval of the applicant's requests because:

      a.  The applicant, although at the top of the E-9 promotion list for
his MOS, did not qualify for promotion because of the SMA enrollment issue.
 Since 1995, the NMARNG has not sent anyone to the SMA who was not within
the selection objective.  The applicant, as a Soldier in MOS 14Z, did not
have a promotion vacancy available.

      b.  The contested NCOERs had been accepted for inclusion in the
applicant's OMPF and only the Enlisted Special Review Board (ESRB) at
Headquarters, Department of the Army (HQDA) is authorized to adjudicate
requests for correction.

      c.  The counseling statements and letter of reprimand were
appropriate adverse actions and the applicant has not established a reason
for their removal from his records.

      d.  The applicant voluntarily requested retirement; he was not forced
to retire.  In his attempt to withdraw his application, he offered no
evidence of an extreme hardship for himself or his family and his request
was appropriately denied.  The applicant is not entitled to restoration to
duty with back pay and allowances.

      e.  The applicant has not provided any proof that he was retaliated
against by the NMARNG after his ABCMR-directed reinstatement in 1998.  All
of the issues surrounding adverse actions are supported by sufficient
evidence to sustain them and he has not shown otherwise.

19.  The applicant was provided an opportunity to respond to the advisory
opinion and did so through counsel.  Counsel argues the ABCMR does possess
the broad authority to act in matters such as the applicant's, to include
correcting his NCOERs.  Counsel also argues the letter of reprimand should
be withdrawn because:  the policy letter the applicant is accused of
violating is dated 16 April 2001, after his alleged trip to Juarez; and
there is conflicting testimony as to the issue of the applicant's conduct
unbecoming.  Counsel states the applicant was, in fact, forced to retire
and that circumstantial evidence supports this contention.  Further, E-9
positions were available before the applicant submitted his retirement
packet, but he was not selected even though he was at the top of the
promotion list, thereby reinforcing the issue of retaliation.

20.  Army Regulation (AR) 635-200 (Personnel Separations – Active Duty
Enlisted Administrative Separations) sets policies, standards, and
procedures to ensure the readiness and competency of the force while
providing for the orderly administrative separation of Soldiers for a
variety of reasons.  It states, in pertinent part, an approved application
for retirement may not be withdrawn by
the Soldier unless it is established that retention on active duty will
prevent an extreme hardship to the Soldier or his/her immediate family.
The hardship must have been unforeseen at the time of application.  An
application for retirement may not be withdrawn after travel has been
performed for retirement.  The retirement date will not be changed unless,
after the application is submitted, events that justify a change in the
retirement occur that would cause an extreme hardship to the Soldier or
immediate family.  Requests for withdrawal of applications or change in
retirement date must be fully documented.

21.  AR 380-67 (Personnel Security Program) establishes personnel security
policies and procedures, including the policy on suspending a security
clearance, until a final determination is made by the appropriate
authority, when information exists which raises serious questions as to an
individual's ability or intent to protect classified information.  Reasons
for suspending a clearance include disregard of public law, statutes,
Executive orders, or regulations, including violation of security
regulations or practices, and acts of omission or commission that indicate
poor judgment, unreliability or untrustworthiness.

22.  AR 623-205 (Noncommissioned Officer Evaluation Reporting System)
prescribes the enlisted evaluation function of the military personnel
system.  It provides requirements for being a reviewer and the duties of a
reviewer.  It states the reviewer must indicate concurrence or
nonconcurrence with rater and/or senior rater by annotating the appropriate
box in Part IIe.  Nonconcurrences must be commented upon by the reviewer.

23.  AR 623-205 also provides for the NCOER appeal process.  Appeals
alleging bias, prejudice, inaccurate, or unjust ratings, or any matter
other than administrative error are substantive and must be adjudicated by
the Deputy Chief of Staff, G-1 Enlisted Special Review Board (ESRB) at
Headquarters, Department of the Army.

24.  AR 600-8-104 (Military Personnel Information Management/Records)
prescribes the policies and mandated operating tasks for the Military
Personnel (MILPER) Information Management/Records Program of the Military
Personnel System.  Chapter 2 discusses the composition of the OMPF and
identifies those documents authorized for filing in the OMPF.

25.  NGR 600-200 (Enlisted Personnel Management) establishes standards,
policies, and procedures for the management of ARNG enlisted Soldiers.
Chapter 11 prescribes policy and procedures for advancement, promotion,
lateral appointment, reduction and restoration for all ARNG Soldiers.

DISCUSSION AND CONCLUSIONS:

1.  In 1998, the ABCMR corrected the applicant's record after determining
that he had been reprised against for making a protected communication to a
member of Congress.  The applicant alleges that he continued to suffer
reprisals from 1998 through his "forced retirement" in 2002.  In support of
this allegation, he offers two NCOERs; two counseling statements; an
incident wherein he was offered NJP, but received a letter of reprimand;
the suspension of his security clearance; denial of his request to attend
the SMA; and his "forced retirement."

2.  The NCOERs referenced by the applicant were not adverse reports; the
rater and senior rater evaluations showed the applicant was "successful" in
his duty performance.

      a.  Concerning the 1999-2000 report, the applicant provides a note
from the reviewer scribbled on a Transmittal Record (DA Form 200)
admonishing the rater and senior rater to "tell the truth" about the
applicant's performance, apparently because he [reviewer] disagreed with
the ratings and wanted the ratings lowered.  The rating officials
maintained their ratings and the reviewer ultimately concurred by checking
the appropriate block in Part IIe.  The scribbled note from the reviewer is
not authorized for inclusion on the OMPF and the applicant has not shown
that it has been included.

      b.  Concerning the 2000-2001 report, the rating officials gave the
applicant "successful" ratings in all areas.  The reviewer nonconcurred and
so indicated by checking the appropriate block in Part IIe.  The reviewer
then completed a statement of nonconcurrence to be amended to the report.
As provided by regulation, if the reviewer disagrees with the rater and/or
senior rater, it is the reviewer's first responsibility to attempt to
resolve the differences.  This could result in the rater and senior rater
changing their ratings, although the reviewer may not force the change.  If
the reviewer is unable to change the minds of the rater and/or senior rater
and still disagrees, then the proper block in Part IIe is marked with an
"X" and a mandatory nonconcurrence enclosure is attached to the report.

      c.  The applicant has not shown that the subject NCOERs contain
errors requiring correction.  The NCOER rating process was correctly
followed, the applicant received satisfactory ratings, and the reviewer's
nonconcurrence with the second NCOER was properly noted.  If anything, the
subject NCOERs show that the applicant's rating chain did not reprise
against him by lowering their ratings, even after the reviewer(s) noted
objections.

3.  The applicant received two negative counseling statements in April
2001.

      a.  The first counseling statement concerned his failure to complete
a set of tasks designed to establish the TOC as operational.  The applicant
stated the counseling statement was incorrect and unjust, but then admits
"the only thing not operational was the computer . . ." which he blamed on
someone else.  In the view of his superior NCO, and by his own admission,
the TOC was not operational.  The counseling statement appears to be valid.

      b.  The second counseling statement was apparently written because of
a dispute over claimed ownership of a wooden crate – the applicant or a
Major.  The statement was written for the applicant's failure to obey an
order from a superior commissioned officer, and for disparaging that
officer.  The applicant argued in writing that he was directed by a
Lieutenant, not the Major, to relinquish the crate and that he did not use
foul language against the Major.  The applicant admits he was "directed" by
an officer not to take the crate.  He did take the crate, therefore he
failed to obey an order.  The counseling statement appears to be valid.

      c.  The DA Form 4856 is not a permanent part of a Soldier's record
and does not go on his OMPF.  The form clearly states, "This form will be
destroyed upon: reassignment (other than rehabilitative transfers),
separation at ETS, or upon retirement."  The applicant has not shown that
the forms are improperly filed on his OMPF.

4.  The applicant requests the 14 October 2001 letter of reprimand be
removed from his OMPF.  The reprimand was issued because:  the applicant
violated Fort Bliss Policy Number A-10, dated 1 January 1999, prohibiting
travel to Juarez, Mexico without a pass or written authorization to do so;
he failed to report immediately back to the Rio Rancho (NM) Armory as
ordered by his commander; and he stood by while a Sergeant First Class
(SFC) "maltreated" a female subordinate.

      a.  The applicant does not state he did not travel to Juarez; he
states the Fort Bliss Policy is dated 16 April 2001, not 1 January 1999.
Therefore, he argues he could not have violated a policy against going to
Juarez when the policy was published after the date of his "alleged" trip.

      b.  The Juarez travel policy is a long-standing policy and is still
in effect.  The Office of the Secretary General Staff (SGS) at Fort Bliss
does not maintain policy files back to 1999, but confirms the policy has
been in effect for many years, not to discourage travel to Mexico, but to
ensure commanders know which of their Soldiers are vacationing in a foreign
country.

      c.  The applicant does not deny that he failed to report immediately
to his duty station at the Rio Rancho Armory; he explains he misunderstood
the order.  This excuse, coming from a senior NCO, is not persuasive.

      d.  The misconduct related to the applicant's failure to correct a
SFC is shrouded in conflicting eyewitness statements.  The applicant
presented witnesses who claim there was no maltreatment, or explain the
incident away as "having a good time."  Other statements relied upon by the
commander, show the applicant stood by while a subordinate NCO harassed a
junior enlisted female.

The letter of reprimand appears to be valid and the applicant has not
offered proof that it is invalid.  Furthermore, paragraph 4 of the letter
clearly states, "I intend to file this reprimand in your Military Personnel
Records Jacket (MPRJ) pursuant to paragraph 3-4a(1), AR 600-37."  The
applicant has not shown that the letter was filed in his OMPF.

5.  During the lead up to the issuance of the 14 October 2001 letter of
reprimand, the applicant's commander was investigating the allegations of
misconduct against the applicant.  In accordance with AR 380-67, the
applicant's security clearance was temporarily suspended.  Once the
investigation was concluded and the reprimand issued, the clearance was
reinstated.  There is no error or injustice in this matter.

6.  The applicant alleges he should have been enrolled in the SMA and
promoted to the rank of SGM, ostensibly because he was at the top of the
promotion list in 2000.

      a.  As previously stated, NCO promotion selection boards convene
annually in each state.  NGR 600-200 provides that a Soldier on the SGM
promotion list must be enrolled in the SMA in order to be promoted.
However, the NMARNG has a policy dating from 1995 declining to send any
Soldier to the SMA without a current or projected SGM vacancy in the
Soldier's MOS.  The NMAG held to that policy and explained the decision not
to send the applicant to the SMA in a 28 November 2000 memorandum to him.

      b.  The promotion selection objective for each MOS indicates the
Soldiers who may expect to be promoted in that MOS during the next 12
months, the approximate life of the list.  Although the applicant was the
top Soldier on the
15 July 2000 list, it is not known whether he maintained that position in
2001 when a new list was published.  The applicant did not provide any
other promotion lists for review.

      c.  On an unknown date (probably August) in 2001, the applicant
submitted a voluntary request for retirement, which was approved.  With an
approved retirement in place, the applicant was effectively removed from
further consideration for positive personnel actions.  AR 635-200 states,
"All NCOs . . . [on] a promotion list will lose promotion-list standing
upon approval of a retirement.  Their names will be administratively
removed from a promotion list, and they will retire in the grade currently
held."

      d.  The applicant alleges that the August 2002 promotion of a fellow
Soldier to an MOS 14Z SGM position proves that a promotion allocation
existed against which he should have been slotted.  However, this ignores
the possibility that he may not have been the top Soldier on the promotion
list in 2001, as well as the fact that he had an approved retirement in
place from August 2001.

7.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__js____  __lgh___  __mjf___  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.



                                        John Slone
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010883                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051214                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.0000                                |
|2.                      |110.0300                                |
|3.                      |131.0000                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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