RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 September 2005
      DOCKET NUMBER:  AR20040011506


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |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, in effect, promotion to sergeant major/pay
grade E-9, reinstatement on active duty, and payment of back-pay.

2.  The applicant states, in effect, that she was selected for promotion to
sergeant major and placed on the control grade allocation list, but then
was notified that she was not selected for retention on active duty.  The
applicant    indicates that she immediately started her transition for
retirement and, while on leave in May 2004, the noncommissioned officer
with the next sequence number was promoted to sergeant major.  She then
initiated a discrimination complaint, which was subsequently dismissed by
the Equal Opportunity Office.

3.  The applicant provides the following documents in support of her
application:
Retirement Orders, Memorandum of Dismissal of Discrimination Complaint,
Memorandum of Non-Selection for Subsequent Duty in the Active Guard Reserve
(AGR) Program, Control Grade Allocation List, Letter of Enrollment in the
Nonresident U.S. Army Sergeants Major Course, Transfer Orders, Counseling
Statements, Noncommissioned Officer Evaluation Reports, Award Orders and
Certificates.

CONSIDERATION OF EVIDENCE:

1.  On 18 October 2003, while serving as a master sergeant in the AGR
program in military occupational specialty (MOS) 79T (Recruiting and
Retention Noncommissioned Officer), the applicant was selected for
promotion to sergeant major and placed on the promotion control allocation
list with sequence number of 2.  The applicant's selection for sergeant
major indicated she demonstrated performance and the potential to accept
higher responsibilities when the promotion board selected her to be
promoted to sergeant major.  On this same date, transfer orders were issued
assigning the applicant as Recruiting and Retention Sergeant Major,
Recruiting and Retention Detachment, Baltimore, Maryland, with duty in
Laurel, Maryland.

2.  On 1 May 2004, the major general, serving as The Adjutant General
(TAG), Maryland National Guard, issued a memorandum notifying the applicant
of her non-selection for subsequent duty in the AGR program.  This document
shows that an Active Service Tour Continuation Board (ASTCB) was convened
from
23 - 25 March 2004, but the board did not consider the applicant for
continuance in the AGR program in accordance with the selection objectives.
 The memorandum also advised the applicant that, under regulatory guidance,
noncommissioned officers who are not approved for extension by the ASTCB
will be released not later than the end of the fourth month after the board
results are approved, or upon attaining 20 years and one month of active
service, whichever is later.  The applicant was also informed that she
would be released from the AGR program and transferred to an M-Day status
or the Retired Reserve (according to the option the applicant chose to
select), not later than
30 September 2004.

3.  State of Maryland, Military Department, Fifth Regiment Armory,
Baltimore, Maryland, Orders 145-198 MD-STARC-ARP, dated 25 May 2004, shows
that the applicant was released from active duty on 30 September 2004,
after completing 20 years, 11 months, and 21 days active federal service,
and placed on the retirement list, effective 1 October 2004.

4.  A review of the applicant's Official Military Personnel File (OMPF)
showed that the Soldier had no adverse actions or information in her
records.

5.  The applicant provides copies of correspondence pertinent to her
selection for promotion to sergeant major and subsequent non-selection for
continued duty in the AGR program, which support the evidence previously
presented.  The applicant also provides a copy of a memorandum from the
colonel serving as the Assistant Adjutant General Army, Joint Force
Headquarters, Maryland National Guard, dated 3 August 2004, which advised
her that the allegations in her discrimination complaint did not meet prima
facie standards and the case was dismissed.  The applicant also provides
copies of numerous award orders and noncommissioned officer evaluation
reports which offer favorable information regarding the applicant's
professional performance during the course of her military career.

6.  In connection with the processing of this case, an advisory opinion was
obtained from the Chief, Personnel Division, National Guard Bureau,
Arlington, Virginia, which recommended disapproval of the applicant's
request.  The advisory opinion confirmed that the applicant was selected
for promotion to sergeant major and placed on the promotion control
allocation list on
18 October 2003, with sequence number 2.  However, it also confirmed that
the State of Maryland conducted an Enlisted ASTCB in March 2004 and the
applicant was not selected for continued duty in the AGR program by the
board as the state did not have a requirement for an E-8 or E-9, MOS 79T5O
and this board process is the only authorized method of continuation in the
AGR program.



7.  National Guard Regulation (NGR) 600-5, in pertinent part, shows that
state Adjutants General will convene AGR Continuation Boards to evaluate
each AGR Soldier's record for demonstrated performance and determine the
potential to accept responsibilities and perform current or higher level
assignments.

8.  Army Regulation 135-18 (The Active Guard Reserve (AGR) Program),
provides, in pertinent part, that the ASTCB is conducted annually under
authority of the Assistant Secretary of the Army for Manpower and Reserve
Affairs [ASA(M&RA)].  This document shows that enlisted AGR Soldiers will
be released on achieving 20 years active service unless retained for an
incremental period by an active service tour continuation board, as
promulgated by the Chief, National Guard Bureau.

9.  Evidence of record shows that the Memorandum of Instruction (MOI)
regulating the Enlisted ASTCB process was published by the Personnel
Policy, Programs, and Management Division and approved by the Chief,
National Guard.

10.  On 20 June 2005, this agency referred the advisory opinion to the
applicant for her review and comments within 15 days of the date of the
letter; however, the applicant failed to respond.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that she was selected for promotion
to sergeant major and placed on the control grade allocation list on
18 October 2003, with sequence number 2.  The applicant further contends
she was not flagged, had no adverse actions pending, had never received any
negative counseling or evaluation reports, and that there was no
justification for her not being promoted, or for her to have to retire.

2.  The applicant’s request and the supporting evidence provided were
carefully considered.  There is no evidence in available records, and the
applicant has failed to provide evidence, that shows she was improperly or
unjustly released from active duty in the AGR program.

3.  Evidence of records show that, on 1 February 2004, the noncommissioned
officer with sequence number 1 on the promotion list to sergeant was
promoted, making the applicant next on the list for promotion, with a
projected promotion date of 1 May 2004.  On 30 April 2004, the applicant
was notified that she was not selected by the Enlisted ASTCB for subsequent
duty in the AGR program.  Therefore, she was not promoted to the rank of
sergeant major/pay grade E-9.
4.  The ASTCB reviews Soldiers for continuation in the AGR program beyond
20 years of active service; this board is not a qualitative board.  This
board considers the full time manning requirements as established by each
state TAG. The board selects Solders for retention based on TAG established
full time manning requirements by grade and MOS.  A non-select Soldier (by
the board) must be separated from the AGR program when the soldier achieves
20 years active service, at the end of a current approved active service
extension, or four months after the board results have been published,
whichever is later.

5.  This NGB board process is the only authorized method of continuation in
the AGR program; States/Territories have limited full time manning
structure and fiscally cannot support unprojected demands.  The Title 32
AGR program is a career program that is designed to manage an enlisted
Soldier's career up to 20 years active service, not up to Retirement
Control Points (RCP).  In addition, information provided in the advisory
opinion shows that the state did not have a requirement for an E-8 or E-9,
MOS 79T5O and they recommend disapproval of the applicant's request.
Therefore, the applicant is not entitled to promotion to the rank of
sergeant major/pay grade E-9, reinstatement on active duty in the AGR
program, or payment of back-pay.

6.  The evidence of record confirms the applicant’s non-select for
continuation on active duty in the AGR program was accomplished in
accordance with the applicable regulations and policies.  All requirements
of law and regulation were met and that the rights of the applicant were
fully protected throughout the boar process.  As a result, her separation
was proper and equitable, and her subsequent retirement was appropriate
based on the appropriate authority and reason for her separation.

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

__JEA __  __BPI ___  __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.




                                  ____James E. Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011506                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20040930                                |
|DISCHARGE AUTHORITY     |AR  . . . . .                           |
|DISCHARGE REASON        |Non-Disability Retirement               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.0100.0000                           |
|2.                      |110.0300.0000                           |
|3.                      |128.0000.0000                           |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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