RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      30 November 2006
      DOCKET NUMBER:  AR20050011572


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Ms. Alice Muellerweiss            |     |Member               |
|     |Mr. Donald L. Lewy                |     |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, that his transfer to the Retired
Reserve be voided, that he be reinstated in the Army National Guard (ARNG)
with promotion to lieutenant colonel, and adjustment or extension of his
mandatory removal date (MRD) to reflect the lost time in service.

2.  The applicant states, in effect, that he did not receive timely
notification of a favorable Army Board for Correction of Military Record
(ABCMR) request, which resulted in the loss of over 3 years of productive
ARNG time.  On 21 February 1996, he filed an ABCMR action because his
records did not reflect he had attended his branch officer advanced course
(OAC) for promotion to major.  His request was approved by the ABCMR on 12
August 1996 and he did not receive a formal notification until 15 June
1999.  The address on the DD Form 149 (Application for Correction of
Military Record) at the time of submission was current and remained the
same for the next 5 years.  The timing was crucial as his branch officer
notified him in April 2000 that he would have his first consideration for
promotion to lieutenant colonel in September 2000.  He lost crucial years
which adversely impacted his promotion to lieutenant colonel since he was
essentially going before the promotion board behind his peers.  The
additional years would have put him closer to his peers and competitors
with more than one or two officer evaluation reports and the 50 percent
completion certificate for the Command and General Staff Officers Course
(CGSOC).

3.  The applicant also states he endeavored to get promoted to lieutenant
colonel through the normal promotion board process but was twice non-
selected.  He requested a special board consideration in the summer of 2002
after his second non-selection.  Instead, his records went before the
mandatory board, by which he was then promoted to lieutenant colonel.
However, he found out that his results were invalid since he was retired.
Again, he requested to go before a special consideration board in 2003.
Those results came back unfavorable in February 2004.  In three successive
instances, he was passed over for promotion twice and promoted in the wrong
venue but with the board seeing no updated records.  This situation would
have been averted had he received timely notification of the previous ABCMR
results.  He had exhausted the normal promotion process and administrative
remedies that he is aware of, so he is returning to the ABCMR in an effort
to resolve his situation.

4.  The applicant provides copies of his 1994 discharge orders, his ABCMR
Proceedings, his promotion memorandums for lieutenant colonel, his
discharge revocation orders, his ARNG appointment orders and oath of
office, his CGSOC

50 percent completion certificate, his Options Upon Non-selection for
Promotion After Second Consideration memorandum and Election of Options
Letter, his ARNG separation orders, the 2002 Lieutenant Colonel Reserve
Components Selection Board (RCSB) Results List, and his Notification of
Promotion Status memorandum, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed in the
United States Army Reserve (USAR), as a second lieutenant, effective
17 January 1980.

2.  He was appointed in the Virginia (VA) ARNG, as a first lieutenant,
effective 5 November 1984.  He was promoted to captain effective 1 May
1987.

3.  He was separated from the VAARNG effective 1 April 1993 and transferred
to the USAR Control Group (Reinforcement).

4.  He was considered and not selected for promotion to major by the 1993
and 1994 RCSBs.  He was discharged from the USAR, as a captain, effective
26 August 1994.

5.  On 27 November 1996, the ABCMR approved the recommendation to correct
his record to show he was selected for promotion to major under the 1993
criteria by a special selection board (SSB) that adjourned on 12 August
1996 and void his discharge.

6.  On 30 April 1999, the applicant's discharge from the USAR was revoked
and he was reinstated in the USAR.

7.  He was issued a promotion memorandum, dated 24 May 1999, showing his
promotion to major with a promotion effective date and date of rank of
30 April 1994.

8.  He was appointed in the South Carolina (SC) ARNG, as a major, effective
14 July 2000.

9.  Based on completion of the required 7 years maximum time in grade
(MTIG), his MTIG date for promotion to lieutenant colonel was 29 April
2001.

10.  The Office of Promotions, Reserve Components, Human Resources Command
(HRC), St. Louis, Missouri, verified that he was considered and not
selected for promotion to lieutenant colonel by the 2000 and 2001 RCSBs
that convened on 6 September 2000 and 5 September 2001, respectively.

11.  The HRC, St. Louis, issued a Notification of Promotion Status
memorandum, dated 28 February 2002, advising the National Guard Bureau
(NGB) and the applicant of the applicant's non-selection for promotion to
lieutenant colonel by the 2001 RCSB.

12.  The Director, Personnel Actions and Services, Army Reserve Personnel
Command (ARPERCEN), St. Louis, issued an Options Upon Non-selection for
Promotion After Second Consideration memorandum, dated 14 March 2002,
advising that Title 10, United States Code, section 14506, required a
major, non-selected for promotion after second consideration to lieutenant
colonel, to be separated not later than the first day of the month
following the month in which the officer completes 20 years of commissioned
service.  The applicant was advised that he would be retained in an active
status until he was credited with 20 years of satisfactory Federal service.


13.  On 10 September 2002, he voluntarily requested transfer to the Retired
Reserve based on completion of 20 years or more of creditable service for
retirement.

14.  He was separated from the SCARNG, as a major, effective 30 September
2002 and transferred to the Retired Reserve.

15.  The 2002 Lieutenant Colonel RCSB convened on 4 September and recessed
on 27 September 2002.  The President approved the board results on
13 January 2003.

16.  The HRC, St. Louis, issued an Eligibility for Promotion as a Reserve
Commissioned Officer Not on Active Duty memorandum, dated 4 February 2003,
advising the NGB of the applicant's selection for promotion to lieutenant
colonel by the 2002 RCSB that adjourned on 4 September 2002.  The
memorandum advised that the effective date of promotion would be either of
the following
dates:  a. 29 April 2001 or, b. the date Federal recognition was extended
in the higher grade or, c. the date following the date Federal recognition
was terminated in the current Reserve grade.

17.  HRC, St. Louis, verified that the applicant's name was removed from
the selection list on 25 February 2004 and annotated in the promotion
database based on his transfer to the Retired Reserve.

18.  The HRC, St. Louis, issued a Notification of Promotion Status
memorandum, dated 22 March 2004, advising the applicant of his non-
selection for promotion to lieutenant colonel by a SSB under the 2001 year
criteria.

19.  In an advisory opinion, dated 17 March 2006, the Chief, Personnel
Division, Departments of the Army and the Air Force, NGB, reiterated the
applicant's requests and statements.  She stated that on 21 February 1996,
while assigned to the USAR, the applicant requested correction of his
military record by promoting him to major.  The applicant's request was
approved by the ABCMR on 27 November 1996, case number AC96-09970.  The
case was sent to ARPERCEN for correction of the applicant's record and to
notify the applicant once the record was corrected.  ARPERCEN published
revocation orders to the applicant's honorable discharge on 30 April 1999
and a memorandum, dated 24 May 1999, was sent to the applicant stating that
his record was corrected by promoting him to major with an effective date
of 30 April 1994.

20.  The NGB Personnel Division official also stated that the applicant
joined the SCARNG on 14 July 2000, per Federal recognition order number
122AR, dated 8 August 2000.  On 28 February 2002, the HRC – St. Louis, sent
a memorandum for notification of non-selection for promotion to lieutenant
colonel.  The applicant was transferred to the Retired Reserve on 30
September 2002, per Federal recognition order number 329 AR, dated 3
December 2002.  The HRC – St. Louis, sent a memorandum on 4 February 2003,
reference the applicant's promotion to lieutenant colonel, as an Air
Defense Artillery (ADA) officer, with a promotion effective date of
4 September 2002, per the Fiscal Year 2002 RCSB.

21.  The NGB Personnel Division official further stated that per a
telephone conversation with HRC – St. Louis, Special Actions Section, they
stated that if the applicant was a two time non-select for promotion and a
MRD was established, the selection for promotion memorandum dated 4
February 2003, was null and void, due to the fact the applicant was already
transferred to the Retired Reserve.  Also Army Regulation 135-155, chapter
2, paragraph 2-7, states that to be eligible for selection, an ARNG or USAR
officer who meets the eligibility requirements must be properly in an
active status and participating satisfactorily in Reserve training.  For
promotion purposes, an officer is deemed to be a satisfactory participant
and in full compliance with the commander's instructions.

22.  The NGB Personnel Policy and Readiness Division recommended one of the
following actions to correct the applicant's record: (a) that he be
reconsidered by a SSB under the 2002 promotion criteria to ensure that he
is considered with a packet that included 50 percent of the CGSOC
completion notice.  The applicant completed the course in September 2001.
Policy also stated that the selection rate for the 2002 lieutenant colonel
board for those that were educationally qualified was 81 percent; if the
applicant had his CGSOC notice, they probably would have selected him.  Or
(b) that his retirement be revoked and he be promoted based on his
selection for promotion by the 2003 [sic] promotion board.

23.  The NGB Personnel Division recommended that the applicant's record be
forwarded to a SSB under the 2002 criteria, in accordance with Army
Regulation 135-155, chapter 3, paragraph 3-19.  If selected by the board,
recommend that the SCARNG revoke the applicant's retirement as a major and
promote him to lieutenant colonel, if the SCARNG has no lieutenant colonel
position available, transfer him to the USAR IRR.

24.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 22 March 2006 and he concurred on 23
March 2006.

25.  His ARNG Retirement Points History Statement, dated 16 June 2006,
shows he was credited with 20 qualifying years of service for retired pay
as of 30 September 2002.

27.  On 16 June 2006, a staff member of the SCARNG confirmed to the NGB
that they did not have a lieutenant colonel slot available at this time for
the applicant.

28.  Army Regulation 135-155, prescribes the policies for the promotion of
Reserve and ARNG officers.  This regulation specifies that if an officer is
determined to be ineligible for promotion because he/she was removed from
an active status before the promotion was finalized (promotion memorandum
issued), the Commander, Office of Promotions, Reserve Components, HRC – St,
Louis, will declare the promotion selection null and void and a promotion
memorandum will not be issued.  A Reserve or ARNG officer on transfer to
the Retired Reserve will be transferred in the highest grade in which
he/she served satisfactorily.

30.  Army Regulation 140-10 provides, with some exception, for separation
of majors, lieutenant colonels, and colonels for maximum age and/or
service.  It specifies that lieutenant colonels may not exceed 28 years of
commissioned service or age 53 if age 25 or older at initial appointment.
This regulation also provides that removal must be accomplished within
30 days after the date of completion of the required years of service.


DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances, the applicant is not entitled to voiding
of his transfer to the Retired Reserve, reinstatement in the Army National
Guard (ARNG) with promotion to lieutenant colonel, and adjustment or
extension of his mandatory removal date (MRD) to reflect the lost time in
service.  He has not shown error, injustice, or inequity for the relief he
now requests.

2.  The applicant's contentions have been noted; however, the applicant was
considered and non-selected for promotion to lieutenant colonel by the 2000
and 2001 RCSB's.  He voluntarily requested transfer to the Retired Reserve
based on completion of 20 years of commissioned service and was separated
from the SCARNG on 30 September 2002.  Prior to his transfer to the Retired
Reserve, he was considered and selected for promotion to lieutenant colonel
by the 2002 RCSB that recessed on 27 September 2002.  The President
approved the 2002 board results on 13 January 2003.  In accordance with
pertinent regulations, his promotion selection was declared null and void
based on his transfer to the Retired Reserve prior to the approval date of
the board.

3.  Based on the reinstatement in the USAR and adjustment to his date of
rank for major to 30 April 1994, he was appropriately considered by the
2000 RCSB that convened prior to his MYIG date of 29 April 2001, for
promotion to lieutenant colonel on or before that date.  He was again
appropriately considered by the 2001 RCSB.  He was separated in 2002 based
on his two non-selections.

4.  Notwithstanding the NGB advisory opinion, the applicant was not
eligible for his selection for promotion to lieutenant colonel by the 2002
RCSB because he was not in an active status when the board was approved on
13 January 2003; therefore, he does not have a basis for reinstatement and
promotion to lieutenant colonel based on the selection by the 2002 RCSB.

5.  The applicant contends that he did not receive timely notification of
his selection for promotion by a SSB.  However, a review of the documents
in the applicant's OMPF did not reveal any correspondence from the
applicant to the ARPERCEN or to the ABCMR regarding the status of his
reconsideration for his promotion.  In the absence of information pertinent
to the status of his promotion issue, it was incumbent upon the applicant
to inquire into the status of his promotion issue.  The applicant was
notified of his SSB selection by the ABCMR in December 1996 and it was his
responsibility to keep in contact with those persons or agencies having a
shared responsibility for all facets of his promotion finalization.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__AM____  __DLL__  _WFC___  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.




                                  _____William F. Crain_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011572                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061130                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.10                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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