RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            2 June 2005
      DOCKET NUMBER:   AR20050007066


      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. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy       |     |Member               |
|     |Ms. Marla J. Troup                |     |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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's 22 July 2004 request for
reconsideration be considered by the Army Board for Correction of Military
Records (ABCMR) and granted.

2.  Counsel states that the applicant's mandatory removal date (MRD) is 1
July 2005.  The applicant did provide new evidence, as noted in paragraph
7, COUNSEL'S REQUEST, STATEMENT AND EVIDENCE below, with his request for
reconsideration.  The new evidence was not merely tangential but related
directly to the applicant's contention that he has been serving in
positions of brigade command equivalency and has been doing so in an
exemplary manner.

3.  Counsel states that, additionally, the applicant had a new argument in
his request for reconsideration.  He requested promotion reconsideration by
the Army Reserve Brigadier General promotion boards for the years 2002,
2003, and 2004.

4.  Counsel states that the applicant has been seeking complete fulfillment
of the ABCMR's intention to redress injustice in his case for over 5 years
now.  In its 1999 decision to grant the applicant a 4-year extension of his
MRD to July 2005, the Board's intention clearly was to permit him a
reasonable opportunity to compete for further advancement beyond the rank
of colonel.  He is seeking no more than implementation of the full intent
expressed by the Board in 1998 and 1999.  In 1999, the Board did not know
or foresee that a trick of the calendar would deprive the applicant of the
intended redress despite his full availing of the opportunities the Board
extended to him.  In a discretionary administrative decision that was not
required by statute or otherwise by law, in 2002 the applicant was denied
eligibility for consideration by the 2003 Army Reserve General Officer
Assignment Advisory Board (GOAAB) due to newly-established, discretionary
age criteria.

5.  Counsel states that, after extending redress to the applicant with one
hand it took it away from him with another hand.  In 1999 the ABCMR clearly
intended for the applicant to have a reasonable opportunity to compete for
advancement to general officer and clearly believed that it was extending
him that opportunity if he availed himself of the pathways that the Board
cleared for him.  The applicant did avail himself of those pathways, as
expeditiously and diligently as possible, and successfully.  Nevertheless,
the opportunity intended by the ABCMR was foreclosed to him due to
administrative obstacles that were not foreseen by the Board in 1999.

6.  Counsel states that the arguments set forth by the ABCMR in its 9
September 2003 decision are flawed in at least the following respects:

      In paragraph 1 of the Discussion, the Board states that the 1998 and
1999 rulings made the applicant as whole as possible, by promoting him to
colonel and extending his MRD.  The Board overlooks the fact that the
reason it extended his MRD was to assure him a reasonable opportunity to
compete for further advancement beyond the rank of colonel.  The Army's
subsequent denial of competition opportunity to him was based on the very
passage of time that the Board intended to redress.  Since the extension of
his MRD to 2005 did not satisfy the Board's intended purpose, a further
extension is now warranted in order to give life to the Board's 1999
ruling.  It will not grant any extra advantage, it will merely "correct the
correction" so as to restore the intended purpose of the original
correction.

      In paragraph 2 of the Discussion, the Board contends that it will not
speculate on what would have been if the applicant had not been waylaid by
the Texas Army National Guard (TXARNG).  However, in its 1999 ruling the
Board impliedly found that the applicant would have had such opportunity by
granting him senior service college entrance and extension of his MRD in
order to repair just such an opportunity.

      In paragraph 3 of the Discussion, the Board maintained that inserting
the applicant into the 2003 board year order of merit slate would "right a
perceived wrong by creating another."  Again, the wrong suffered by the
applicant is not merely "perceived."  In fact, the Board found in 1999 that
he was unjustly deprived of promotion to colonel by the TXARNG and found
that extension of a reasonable opportunity for him to compete for further
advancement thereafter was a necessary element of redress.

      In paragraph 4 of the Discussion, the Board stated that the
applicant's July 2005 MRD allowed him four years of commissioned service in
excess of his contemporaries.  The Board overlooks the fact that the TXARNG
deprived him of six years of service at the rank of colonel, in
disadvantage to those of his contemporaries who attained the rank of
colonel by 1993.  The net disadvantage to the applicant comes out to two
years – the same amount as the length of MRD extension that he requests.

      In paragraph 5 through 8 of the Discussion, the Board continues to
misunderstand the significance of the fact the [1999] Board explicitly
intended for the applicant to have a reasonable opportunity to compete for
advancement beyond the rank of colonel.  The Board's characterization of
his request as asking the Board "to further bend the rules" unfairly and
inaccurately implies that the applicant is seeking special prerogatives.
He is only seeking correction of the injustice inflicted by the TXARNG in
vindictively blocking his service to his country.

7.  Counsel provides the ABCMR's 29 April 2005 letter denying the
applicant's request for reconsideration; the ABCMR's 9 September 2003
decision in Docket Number AR2002079617; the applicant's 22 July 2004
request for reconsideration; and the applicant's 30 March 2005 supplement
to his 22 July 2004 request for reconsideration.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
ABCMR in Docket Number AR2002079617 on 9 September 2003.

2.  The four documents provided by the applicant with his 22 July 2004
request for reconsideration are new evidence which will be considered by
this Board.  His request for promotion reconsideration by the Army Reserve
Brigadier General promotion boards for the years 2002, 2003, and 2004 is a
new issue which will be considered by this Board.

3.  The applicant was born on 27 May 1947.  After having had prior service,
he transferred to the ARNG on 13 May 1977.  He was promoted to lieutenant
colonel (LTC) on 27 March 1989.  He was involuntarily discharged from the
TXARNG effective 24 August 1994.

4.  The applicant apparently began to actively participate in the U. S.
Army Reserve (USAR) as an Individual Mobilization Augmentee (IMA) around
1994 or 1995.

5.  The applicant challenged his discharge from the TXARNG, and on 12 July
1995 the Texas Court of Appeals held that his discharge was unlawful.  The
TXARNG appealed; however, the Texas Supreme Court declined the State's
appeal.

6.  The TXARNG may have refused to take remedial action.  On 20 March 1998,
the applicant requested the ABCMR take remedial action.  He made about
  20 specific requests, including voiding his 24 August 1994 discharge from
the TXARNG; allowing him to attend a resident Senior Service College (SSC),
or participate in a SSC correspondence studies program, or by awarding him
constructive credit for SSC attendance; giving him a unit vacancy promotion
and Federal Recognition to colonel in the TXARNG effective 16 February
1993; giving him constructive credit for having served as a brigade
commander and division chief of staff in the TXARNG; showing he was
promoted to and confirmed by the U. S. Senate at the grade of brigadier
general on or about        16 May 1997; and reassigning him to the first
available general officer position in the TXARNG for which he was
qualified.

7.  On 5 August 1998, in ABCMR Docket Number AC98-06778, the Board
concluded that there was sufficient evidence to show the applicant was the
victim of reprisal while in the TXARNG and that he was entitled to some
relief.  The Board also, however, was not convinced that the career
development path envisioned by the applicant would necessarily happen as
had been set forth.  It noted that charting an officer's career progression
with the exactness detailed in his application was speculative at best.
Therefore, the Board did not support granting all of the relief requested
but did support, in addition to other relief, showing he was given a unit
vacancy promotion in the TXARNG and Federal Recognition to the grade of
colonel, effective 16 February 1993 and showing that his enrollment in a
SSC correspondence studies program was approved for entry into the next
available program.

8.  Subsequent to the ABCMR's 5 August 1998 decision, the applicant
requested certain other corrections to include showing he was promoted to
colonel, effective February 1993, in the USAR and extending his MRD to 2006
or, in the alternative, showing he was promoted to brigadier general with a
corresponding revision of his MRD.

9.  On 26 May 1999, in ABCMR Docket Number AC98-06778A/AR1998009998, the
Board concluded that it would be appropriate to promote the applicant to
colonel in the USAR effective 16 February 1993 to overcome the delay being
encountered in consummating his promotion [in the TXARNG].  The Board also
noted, "The applicant's contentions of what might have been in his career
are speculative at best.  Nevertheless, it would be fair to grant him some
additional time to pursue further career opportunities by extending his
MRD.  Although the…extending his MRD to the maximum permitted under law
would, it seems, give him a length of service advantage not available to
his contemporaries.  Therefore, a shorter term of extension of four years
from 1 July 2001 to 1 July 2005 would appear to be a more equitable remedy.
 Such extension would allow a period of one year to compete for selection
for senior service level schooling, one year…  Additionally, a four-year
extension would still permit him a reasonable time to compete for further
advancement."  The Board's recommendations were in line with these
conclusions.
10.  Orders dated 20 September 2000 ordered the applicant to active duty
with a report date of 16 October 2000.  Orders dated 26 September 2000
released him from assignment to his IMA unit to the USAR Control Group
(Reinforcement).  He has been on active duty since October 2000.

11.  On 27 September 2002, the applicant requested that he be considered
for promotion by the 2003, and, if not selected, by the 2004 and 2005 Army
Reserve General Officer promotion boards and that his MRD be extended to
July 2006.  Under eligibility criteria published in February 2002, officers
must not have attained 56 years of age prior to 1 March 2004.  The
criterion was not statutory.  The applicant missed the criterion by 10
months.  The applicant and his counsel made the request based on the
reasons cited in COUNSEL'S REQUEST, STATEMENT AND EVIDENCE, above.

12.  On 9 September 2003, in ABCMR Docket Number AR2002079617, the Board
concluded that it had made the applicant as whole as possible in its August
1998 and June 1998 rulings.  The Board would “not speculate on what "would
have been” if the applicant had not been waylaid by the Texas Guard."  It
noted that the 1999 Board concluded the applicant should have additional
time to pursue career opportunities to permit him a reasonable time to
compete for further advancement.  At that time, however, it was not
perceived that he would be unable to now compete for promotion because of
his age.  The Board did not accept counsel's argument that the applicant
should have additional opportunities for consideration for promotion to
general officer as a partial makeup for the six opportunities that he
presumably missed had he been promoted to colonel in 1993.  Counsel assumed
the applicant would have met all the eligibility criteria then in effect to
be considered for assignment and promotion and was asking the Board to make
the same assumption.  The Board noted that it could just as well have
speculated that the applicant would not have been selected for assignment
and promotion in any of those six tries or in any subsequent efforts.  His
request was denied.

13.  On 22 July 2004, the applicant requested reconsideration of the
ABCMR's    9 September 2003 decision.  His request was administratively
closed.

14.  The applicant's Officer Evaluation Report (OER) history subsequent to
his separation from the TXARNG, as a USAR officer, is as follows (an
asterisk indicates the applicant’s senior rater (SR) potential block
rating):

      12-day OER for the period ending 23 June 1995 as a LTC with a
principal duty title of Procurement Officer for Headquarters, Forces
Command (FORSCOM):  0/*5/5/0/0/0/0/0/0

      Academic Evaluation Report for the nonresident Materiel Acquisition
Management Reserve Component course, course completed 29 August 1996:
Achieved Course Standards

      12-day OER for the period ending 27 September 1996 as a LTC with a
principal duty title of Procurement Officer for Headquarters, FORSCOM:
*9/3/0/0/0/0/0/0/0

      26-day annual training OER for the period ending 23 May 1997 as a LTC
with principal duty title of Procurement Officer for Headquarters, FORSCOM:
 *10/3/0/0/0/0/0/0/0

      26-day OER for the period ending 14 August 1998 as a LTC with a
principal duty title of Procurement Officer for Headquarters, FORSCOM:
*5/2/0/0/0/0/0/0/0

      Academic Evaluation Report for the resident Contingency Contracting
course for the period 16 through 26 March 1998:  Achieved Course Standards

15.  By letter dated 16 June 1999 and per the ABCMR's directive, the
applicant was retroactively promoted to USAR colonel, effective 16 February
1993.

16.  The applicant's OER, DA Form 67-9 version, history is as follows:

      5-month OER for the period ending 29 September 2000 with a principal
duty title of Director, Special Projects Office, Brigade Combat Team for
Communications-Electronics Command (CECOM).  The SR was Major General (MG)
N___, the Commanding General, CECOM.  SR comments included, "Has monumental
potential for general officer."  He was rated as center of mass by the SR.

      8-month change of rater OER for the period ending 27 June 2001 with
the same principal duty title and the same SR.  SR comments included, "The
Army has an officer whose creative mind and unique leadership skills need
to be fully utilized as a general officer."  He was rated as above center
of mass by the SR.

      12-month annual OER for the period ending 27 June 2002 with the same
principal duty title and organization but a new SR, MG R___.  MG R___ acted
as both rater and SR.  All SR comments were highly laudatory.  The
applicant's performance and potential were rated as Outstanding
Performance, Must Promote (the highest possible rating) and his promotion
potential was rated as Best Qualified (the highest possible rating).  He
was rated as center of mass by the SR.
      10-month release from temporary active duty OER for the period ending
   5 May 2003 with the same principal duty title and the same SR.  He was
rated as center of mass by the SR.  In addition, the SR, who was acting as
both the rater and SR, rated the applicant's performance and potential as
Satisfactory Performance, Promote (the second highest rating) and his
promotion potential as Fully Qualified (the second highest rating).

      12-month annual OER for the period ending 5 May 2004 with the
principal duty title of Director, RAH-66 Program Independent Analysis.  The
SR was MG B___, Program Executive Officer, Aviation.  SR comments included,
"The Army has a truly exceptional leader whose creative mind, strategic
thinking, and problem solving abilities need to be utilized as a general
officer.  (The applicant) should be promoted to BG now."  He was rated as
above center of mass by the SR.

17.  In his request for reconsideration, the applicant provided four
documents:

      (1)  In a 18 February 2004 letter, Brigadier General R___ stated that
his work with the Stryker Brigade Combat Teams brought him into close
contact with the applicant from June of 2000 to the present.  The
applicant's military duties were equivalent to brigade command
responsibility and were remarkably similar to those of a Program Executive
Officer, normally a brigadier or major general position within the Army
Acquisition Corps.

      (2)  In a 14 June 2004 letter, MG B___ (the applicant's SR on his 5
May 2004 OER), stated that for the period of July 2000 through July 2004 he
was directly involved in the applicant's assignment to "both of these
challenging positions."  The Army needed the applicant's tireless services
for many more years.  He urged the Board to allow the applicant's records
to go before the next general officer promotion selection board.

      (3) In a 26 January 2004 letter from the same MG B___, MG B___
endorsed the applicant's application for admission into the Chief
Information Officer Certificate Program at the Information Resources
Management College.

      (4)  In a 28 January 2004 letter, Brigadier General, retired, G___
stated that he was the I Corps Deputy Commanding General for Training and
Readiness at Fort Lewis, WA for the period July 1999 through September
2001.  He had personal knowledge of the applicant's military duties.  Those
duties greatly exceeded brigade command responsibility and were remarkably
similar to those of a Program Executive Officer, which is at least a
brigadier or major general position within the Army Acquisition Corps.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contention that the applicant is seeking no more than
implementation of the full intent expressed by the Board in 1998 and 1999
is noted.  It is also noted that the 1999 Board (which supplemented the
1998 Board decision) noted that the applicant's contentions of what might
have been in his career were speculative at best.  Nevertheless, the 1999
Board believed it would be fair to grant him some additional time to pursue
further career opportunities by extending his MRD.  It then extended his
MRD four years.

2.  This current Board believes that the applicant was given a reasonable
opportunity to compete for advancement.  Disregarding for the moment the
fact the applicant is not administratively eligible for promotion
consideration to brigadier general, there is no clear evidence in his OER
history to show he is competitive for promotion to brigadier general.

3.  Of the five OERs the applicant received since receiving his retroactive
promotion to colonel, he was rated as center of mass in three of them and
only above center of mass in two of them.  It is noted that, while MG N___
commented in his first OER on the applicant that he had "monumental
potential for general officer," he sent a conflicting message by only
rating him as center of mass.  In the OER for the period ending 5 May 2003,
the applicant's SR (acting as the rater) indicated his performance and
potential and his promotion potential actually declined from the previous
rating period.

4.  Notwithstanding the statement from MG B___ indicating that he was
directly involved in the applicant's assignment to both of these
challenging positions or the statement from Brigadier General, retired,
G___ indicating that he had personal knowledge of the applicant's military
duties, the applicant's rating officials did not always feel he had the
potential for promotion to general officer. As noted again, three times out
of five those rating officials rated him as only a center of mass officer.
The applicant never indicated that he was ever rated by an incorrect rating
chain.

5.  This current Board also notes that the August 1998 Board concluded that
the applicant was the victim of reprisal while in the TXARNG and that he
was entitled to some relief.  Some of that relief included promotion to
colonel effective February 1993.

6.  Counsel contends that, while the September 2003 Board stated the
applicant's July 2005 MRD allowed him four years of commissioned service in
excess of his contemporaries it overlooked the fact that the TXARNG
deprived him of six years of service at the rank of colonel.  The net
disadvantage to the applicant comes out to two years.

7.  However, this current Board does not perceive the net disadvantage
discerned by the applicant and his counsel.  While the TXARNG may have
vindictively blocked the applicant's service to the TXARNG it did not block
his service to his country.  He did not have a complete cessation of his
military career between his discharge from the TXARNG in August 1994 and
the Board's voiding of that discharge in 1998/1999.  He actively served in
the USAR at least from June 1995 to the present.  All of his USAR OERs from
1995 until June 2000, during which time he was a very senior LTC performing
LTC duties, shows he was rated as a center of mass officer.

8.  Promotion to general officer is even more competitive than that for
promotion to colonel.  Duty as a brigade or brigade-level commander by
itself does not warrant promotion selection to general officer.  The
performance of those duties is the determinant factor.  Despite the fine
ratings and comments by MG B___ and the fine rating by MG N___ (in the
second OER he rendered on the applicant), the preponderance of the evidence
of record does not clearly show that the applicant is of such general
officer material that would warrant granting him an exception to the age
criterion.  There is insufficient evidence to show that a further extension
of his MRD would overcome the center of mass OERs he has received in making
him competitive for promotion to brigadier general.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fne___  __teo___  __mjt___  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.




            __Fred N. Eichorn_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050007066                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050602                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.00                                  |
|2.                      |136.06                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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