RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:
      DOCKET NUMBER:  AR20040011577


      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. Rosa M. Chandler              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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, an adjustment in his dates of rank
(DOR) to first lieutenant (1LT), captain (CPT), and major (MAJ) and that he
be promoted to lieutenant colonel (LTC).  He also requests that the Army
Board for Correction of Military Records (ABCMR) correct his "service
branch from Field Artillery (FA) to Military Intelligence Officer (35D)
with a career designated functional area of Psychological Operations
(FA39/39B).


2.  The applicant states, in effect, that his requested corrections are
based on inappropriate counsel concerning personnel actions, an
inappropriate DOR to 1LT that lead to a delay in his promotion to higher
grades, an inappropriate response from the State MILPO concerning his
branch transfer to Military Intelligence (MI), a delay in the processing of
his security clearance, and an unjust State policy that forced certain
officers to serve the maximum time-in-grade (TIG) while promoting others.

3.  The applicant states in a detailed personal letter to the Board, dated
30 November 2004, that he desires to have his DORs to 1LT, CPT, and MAJ
adjusted and receive all appropriate back pay.

4.  The applicant provides in support of his request Exhibits A-M, which
include:


      a.  Memoranda, dated between 26 January 1994 and 30 November 2004; a
letter dated 4 June 2003; an information paper, dated 17 August 2004; and
congressional correspondence, dated 4 and 7 October 2004.

      b.  Service Requirements Schedules and Minimum/Maximum TIG schedules.

      c.  A biographic summary.


      d.  Officer Evaluation Reports for the periods ending between 8
February 1987 to 31 January 2004; and Academic Evaluation Reports.


      e.  Assignment Orders; Promotion Orders with supporting documents.

      f.  A Bachelor of Science Degree, dated 17 March 1995; and Letters of
Commendation.

CONSIDERATION OF EVIDENCE:

1.  On 8 August 1986, the applicant was commissioned a 2LT in the New York
Army National Guard (NYARNG) in Area of Concentration (AOC) 13A (Field
Artillery Officer) in Field Artillery (FA) Branch.

2.  The available evidence shows the applicant was promoted to 1LT on
7 August 1989, to CPT on 14 July 1993, and to MAJ on 12 November 2004.  The
available evidence also shows his branch is still FA Branch; there is no
evidence that he received a branch transfer to MI Branch.

3.  In the processing of this case, an advisory opinion was provided by the
Chief of Personnel Division, National Guard Bureau (NGB), Arlington,
Virginia.  The advisory opinion stated:

      a.  The applicant was appointed a 2LT on 8 August 1986 and promoted
to 1LT on 7 August 1989.  Chapter 8 of National Guard Regulation (NGR) 600-
100 (Commissioned Officers – Federal Recognition and Related Personnel
Actions) provides the minimum TIG requirement for promotion to 1LT was 36
months; the applicant was promoted at 36 months of service.

      b.  The applicant completed the FA Officer Advanced Course (FAAOC) on
24 June 1991 and was promoted to CPT on 14 July 1993.  Chapter 8, NGR 600-
100 and Table 2-1, Army Regulation (AR) 135-155 (Army National Guard and US
Army Reserve - Promotion of Commissioned Officers and Warrant Officers
Other Than General Officers) provides a minimum/maximum TIG guideline to
CPT of
2-5 years.  The applicant was promoted to CPT within the 2-5 year guideline
[3 years, 11 months and 7 days].  The opinion further stated promotion
authority resides solely with The Adjutant General (TAG) of the State.

      c.  The applicant completed Phase 1 of the Combined Arms and Services
Staff School (CAS3) in January 1993 and completed Phase 2 (resident phase)
in 1994.  On 10 August 2000, he was notified of his promotion to MAJ with
an effective DOR of 13 July 2000.  Chapter 8, NGR 600-100 and Table 2-1,
Army Regulation (AR) 135-155 provides a minimum/maximum TIG guideline to
MAJ of 4-7 years [the applicant's effective DOR was at the 7-year mark].

      d.  In a memorandum dated 13 October 2000, the applicant requested a
3-year delay in his promotion to MAJ (from 13 July 2000 to 13 July 2003).
He requested the delay based on his desire to branch transfer from FA to
MI, and his mistaken belief – fostered, he said, by the State Military
Personnel Office (MILPO) – that he required a TOP SECRET security clearance
in order to be transferred to MI branch and promoted to MAJ.
      e.  In accordance with chapters 3-400 and 3-401, AR 380-67, the
applicant could have received an interim TOP SECRET security clearance
based upon his possessing a SECRET clearance and continuous military
service with no break in service.  Thus, he did not have to wait for a
final TOP SECRET clearance in order to be promoted.

3.  The NGB advisory opinion recommended partial approval of the
applicant's request to the ABCMR.  The opinion stated the applicant's DOR
to MAJ should be adjusted to 13 July 2000 and, based on that adjustment,
his records should be forwarded to a Special Selection Board (SSB) for
promotion consideration to LTC under the criteria in effect in 2004.

4.  The advisory opinion was provided to the applicant and he was provided
an opportunity to rebut it not later than 28 April 2005.  On 30 April 2005,
the applicant responded that he concurred with the advisory opinion.

5.  NGR 600-100, chapter 8 provides that the minimum TIG for promotion from
MAJ to LTC is 48 months provided the individual meets all of the other
promotion criteria.

6.  The Army officer classification system is comprised of an AOC code
based on branch of service and/or a Functional Area (FA) code based on a
particular skill.  AOC 13A represents a field artillery officer assigned to
the Field Artillery (FA) Branch.  AOC 35D represents an all source
intelligence officer assigned to the Military Intelligence (MI) Branch.  FA
code 39B represents a psychological operations (PSYOPS) officer.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence supports that the applicant was promoted through
the ranks from 2LT to CPT in accordance with promotion guidelines in effect
at the time.

2.  The applicant's promotion selection to MAJ on 13 July 2000 was at the 7-
year TIG mark and, thus, in accordance with promotion guidelines.  For
whatever reasons, he declined promotion to MAJ on 13 July 2000, requesting
a 3-year delay in order to obtain a TOP SECRET security clearance.  The
State MILPO could have granted an interim TOP SECRET clearance which would
have permitted the applicant to accept promotion to MAJ on 13 July 2000 and
still proceed with a branch transfer request.

3.  It appears the applicant was improperly advised concerning his efforts
to branch transfer to MI Branch.  The NGB advisory opinion recognizes this
fact and recommends the applicant's DOR to MAJ be adjusted to 13 July 2000,
and that he be given SSB promotion consideration to LTC using the 2004
criteria.

4.  The evidence does not indicate that the applicant ever received a
branch transfer to MI Branch; therefore, there is no basis for changing his
record to indicate such.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__tap___  __enr___  __jrs____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a
recommendation for partial relief.  As a result, the Board recommends that
all Department of the Army records of the individual concerned be corrected
by:

      a.  Adjusting his DOR to MAJ from 12 November 2004 to 13 July 2000
and paying him any difference in pay and allowances to which he may be
entitled.

      b.  Forwarding his records to a SSB for promotion consideration to
LTC under the 2004 promotion criteria and, if selected, providing him an
appropriate DOR and any pay and allowance adjustment to which he may be
entitled.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
the correction of his DORs to 1LT and CPT, and branch transfer from FA
Branch to MI Branch with a Functional Area code of 39B.


                                        Thomas A. Pagan
                                  ______________________
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040011577                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.0500                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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