RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 January 2006
      DOCKET NUMBER:  AR20050006419


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Qawly A. Sabree               |     |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 that his date of rank to lieutenant colonel be
adjusted to show the effective date of 18 April 2002.  The applicant also
requests back pay and allowances for the period 18 April 2002 through 7
October 2002 including the difference in Dislocation Allowance related to
his move from Fort Sill, Oklahoma to Fort Leavenworth, Kansas.

2.  The applicant states he is an Army National Guard (ARNG) Title 10
Active Guard Reserve (AGR) officer in the Tennessee Army National Guard
(TNARNG). He continues that he was selected for promotion by a Department
of the Army Mandatory Promotion Board in 2002 and that as a result of this
selection he was assigned a date of rank of 18 April 2002.

3.  The applicant further states that, although he was selected for
promotion in early 2002 and was assigned to a lieutenant colonel position,
the National Guard Bureau (NGB) did not authorize the TNARNG to promote him
until October 2002.

4.  The applicant provides a copy of NGB Orders Number 300-002, dated
27 October 1997; five Officer Evaluation Reports (OERS); NGB Orders Number
16-46, dated 16 January 2002; NGB Orders Number 267-2, dated 24 September
2002; TNARNG Orders Number 268-158, dated 25 September 2002; NGB Federal
Recognition Orders Number 58 AR, dated 18 February 2005; and a NGB
memorandum, dated 7 October 2002.

CONSIDERATION OF EVIDENCE:

1.  Records show the applicant was promoted to the grade of major in the
TNARNG on 19 April 1995.

2.  The applicant's records contain a U.S. Total Army Personnel Command
memorandum, dated 28 February 2002, which shows that he was selected for
promotion under the provisions of Army Regulation 135-155 (Promotion of
Commissioned Officers and Warrant Officers Other Than General Officers).
This memorandum further states the promotion eligibility date is "20020418"
[18 April 2002].  The memorandum also states the promotion eligibility date
will be used in computing time in grade for Reserve promotion to the next
higher grade.

3.  The memorandum concludes "If Officer accepts promotion and Federal
recognition is not extended in the next higher grade, he/she will be
transferred in his/her current grade to the U.S. Army Reserve on the day
following the date of termination of Federal recognition."
4.  TNARNG Orders Number 268-158, dated 25 September 2002, show the
applicant was promoted to the grade of lieutenant colonel effective 7
October 2002.

5.  NGB memorandum, dated 7 October 2002, shows the applicant was promoted
in the Reserve of the Army for service in the Army National Guard of the
United States in the grade of lieutenant colonel effective 7 October 2002.
This memorandum further states the applicant's promotion eligibility date
(Date of Rank) was 18 April 2002 and that his time in grade for promotion
to the next grade will be computed from that date.

6.  NGB Federal Recognition Orders Number 58 AR, dated 18 February 2005,
show the applicant was granted permanent Federal Recognition for promotion
to the grade of lieutenant colonel effective 7 October 2002.  These orders
further show the applicant had a promotion eligibility date of 18 April
2002.

7.  The Chief of the National Guard Bureau Personnel Division provided a
comprehensive advisory opinion of the applicant's request which essentially
stated that promotions in the National Guard are a function of the Adjutant
General of the State.

8.  They recommended disapproval of the applicant's request for adjustment
to his promotion effective date, back pay of allowances promotion, and
dislocation allowances related to the permanent change of station (PCS)
from Fort Sill, Oklahoma.

9.  On 7 September 2005, the NGB opinion was forwarded to the applicant for
review and rebuttal.

10.  On 10 September 2005, the applicant provided a two-page written
response to the NGB opinion.

11.  The applicant stated the NGB opinion incorrectly addressed his request
for dislocation allowance for his PCS move.  He contends that he received
the dislocation allowance and is now merely requesting the difference in
the pay between the grades of major and lieutenant colonel.





12.  The applicant also contends that NGB officials failed to address the
unique promotion procedures involving Title 10 Active/Guard Reserve (AGR)
Officers of the Army National Guard.  He continues that the State Adjutant
General must process promotion orders for Soldiers assigned to his/her
State and that NGB provides the slots/positions for those Soldiers assigned
to a Title 10 AGR position.

13.  The applicant argues that the State Adjutant General can promote a
Title 10 AGR officer without the consent and approval of the NGB; however,
such promotions must be done with State resources and positions.  The
applicant continues that the NGB controls the Title 10 AGR positions and
the resources needed by the States to promote Title 10 AGR Soldiers.

14.  The applicant further argues that TNARNG officials published and
forwarded State promotion orders after being authorized a lieutenant
colonel position on the Table of Distribution and Allowances and being
authorized a lieutenant colonel-AGR controlled grade position.

15.  The applicant contends that NGB could have authorized these promotion
resources immediately after his selection for promotion to lieutenant
colonel.

16.  The applicant concludes that he was assigned to a lieutenant colonel
position at the time the selection results were released and that for no
apparent reason, NGB officials chose to delay in providing the necessary
resources for promotion until late in the summer of 2002.

17.  Paragraph 8-14 of National Guard Regulation (AR) 600-100 (Personnel-
General) states ARNG commissioned officers will be mandatorily considered
for promotion as Reserve commissioned officers of the Army when they meet
the minimum promotion service requirements prescribed for the zone of
consideration.

18.  Paragraph 8-10c of National Guard Regulation (AR) 600-100 states if a
commissioned officer has been selected for promotion by a Headquarters,
Department of the Army board convened under mandatory selection criteria,
the State may promote the officer under unit vacancy criteria prior to the
mandatory promotion eligibility date.  The requirement to conduct a Federal
Recognition Board is waived if the unit vacancy promotion is in the same
branch and area of concentration as that for which the officer received
mandatory promotion selection.

19.  Paragraph 4-21d of Army Regulation 135-155 states that AGR officers
selected for promotion by a mandatory board will be promoted provided they
are assigned/attached to a position in the higher grade.  An AGR officer
who is selected for promotion by a mandatory board, but who is not
assigned/attached to a position in the higher grade will be promoted on the
date of assignment/attachment to the higher graded position or the day
after release from an AGR status.

20.  Section 14308(f) of Title 10 United States Code states that the
effective date of a promotion of a reserve commissioned officer in the Army
who is extended Federal recognition in the next higher grade in the Army
National Guard shall be the date in which such Federal recognition in that
grade is so extended.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his date of rank to lieutenant colonel should be
adjusted to show the effective date of 18 April 2002 because officials from
the NGB did not authorize a TDA position for his promotion in a timely
manner.

2.  Evidence of record shows the applicant was recommended for promotion to
the grade of lieutenant colonel by a DA Mandatory Selection Board and
determined that his promotion eligibility date was18 April 2002.

3.  The promotion eligibility date is the date from which time in grade is
calculated for promotion consideration to the next higher grade.

4.  Evidence of record shows the applicant was promoted by the TNARNG and
extended permanent Federal Recognition for the purpose of promotion to the
grade of lieutenant colonel on 7 October 2002 with a promotion eligibility
date of 18 April 2002.

5.  All promotions in the Army National Guard are based on position
availability and resource allotment.  The National Guard Bureau did not
authorize a control grade position to the TNARNG until after the applicant
had been selected for promotion by a DA Mandatory Board.  Upon approval of
the required position, the applicant's promotion packet was forwarded to
the NGB for issuance of permanent Federal Recognition Orders for promotion
to the grade of lieutenant colonel.



6.  Although NGB officials determine the number of control grade positions
that they will authorize the States, there is no requirement for the
Adjutant General of the State to automatically promote an officer based on
the selection by a DA Mandatory Board.

7.  The applicant could have elected to immediately transfer to the United
States Army Reserve to accept the promotion.  Additionally, the selection
by a DA Mandatory Board is valid for one year until the next Board
convenes.

8.  Based on all of the foregoing, there is no manifest error in the
promotion procedures employed during the applicant's promotion to
lieutenant colonel.  There is no evidence and the applicant has not
provided sufficient evidence which shows the Adjutant General of the State
intended to promote him to the grade of lieutenant colonel prior to 7
October 2002.  Therefore, there is insufficient evidence to warrant
adjustment of his date of rank to lieutenant colonel.

9.  Additionally, there is no basis to grant the applicant's request for
back pay and allowances or the difference in pay for dislocation allowances
as requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_KLW___  _QAS___  _DED____  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.




                                      _Kenneth L. Wright______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050006419                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060110                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]