RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 July 2006
      DOCKET NUMBER:  AR20050013893


      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. Edmund P. Mercanti            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. Marla J. N. Troup             |     |Member               |
|     |Mr. William F. Crain              |     |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 reconsideration of the denial of his request to
adjust his date of rank to colonel from 27 September 2003 to 8 December
2001; that he be reinstated in the New York Army National Guard (NYARNG) as
a colonel; and that he be given the pay and retirement points he would have
received if he had been promoted to colonel in the NYARNG on 8 December
2001.

2.  The applicant states, in effect, that the original Board’s rationale
for denying his request is that there is no evidence he was occupying a
colonel position or that he would be chosen to occupy a colonel position,
was flawed.  He was occupying a colonel’s position at the time and the
Commanding General of the NYARNG has stated in writing that he would have
selected him for that position if he had been selected for promotion by the
2001 Reserve Components Selection Board (RCSB).

3.  The applicant also states that the individual eventually selected for
the colonel’s position was junior to him, and that his former status as a
military technician is not relevant to the case since that position had
been eliminated.  The applicant also asks that an assumption be made by the
Board that he would have been given a colonel’s position prior to his
actual placement into a colonel’s position based on the Commanding General,
NYARNG’s comment on his rating that he was best qualified.

4.  The applicant provides:

      a.  an excerpt from New York State Code.

      b.  a statement from the former Commanding General of the NYARNG.  In
that statement he said that he was in command, and the applicant’s senior
rater, when the officer for the colonel position in question was selected.
He says that the applicant was never considered for the position because he
was not selected for promotion to colonel by the mandatory selection board.
 He adds that the applicant “was serving as the Regimental Executive
Officer” of the unit which had the colonel position vacancy.  The former
Commanding General of the NYARNG says that based on the applicant’s
seniority and performance, he would have selected him for the colonel’s
position if he had been selected for promotion by the 2001 RCSB.  The
former Commanding General of the NYARNG recommends approval of the
applicant’s request.

      c.  a memorandum dated 1 September 2002 in which it was stated “The
undersigned assumes command of the HQ 106th Regiment (RTI) New York Army
National Guard effective 01 September 2002.”  This memorandum was signed by
the applicant.

      d.  statements from two NYARNG officers.

      e.  a memorandum dated 11 August 2003 which stated that the
applicant’s civilian technician position would be abolished on 1 October
2003.

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
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20040004947, on 14 April 2005.

2.  The applicant was selected for promotion to colonel under 2001
promotion criteria by a Special Selection Board (SSB) which convened on 2
April 2003.  Based on this selection, he was eligible for promotion to
colonel effective 8 December 2001, the Senate confirmation date of the 2001
RCSB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not stated that he was occupying a colonel’s position
on 8 December 2001, and there is no indication that he was occupying a
colonel’s position at that time.  Since the applicant elected to resign his
NYARNG commission to accept the promotion in 2003, it would be reasonable
to presume that he would have done the same if he had been selected by the
2001 RCSB.

2.  However, the Board cannot correct the applicant’s records to show that
he was given an effective date of promotion of 8 December 2001, as that
would require his records to be further corrected to show that he
transferred to the US Army Reserve Control Group on that date.  Such a
correction would result in a collection of the pay the applicant received
from the NYARNG from that date.

3.  Also, the documentation provided by the applicant does not conclusively
prove that he was occupying a colonel’s position on 1 September 2002.
While the applicant has provided a document showing that he assumed command
of the unit in question, the statement from the former Commanding General
of the NYARNG shows the applicant was the Regimental Executive Officer of
that unit, not the commander.  The applicant may have assumed command of
the unit until a permanent commander was selected.  That does not mean he
was assigned to the commander’s (colonel’s) position.  If the applicant was
not occupying a colonel’s position, he could not have been promoted at that
time.

4.  While the former Commanding General of the NYARNG has stated that he
would have selected the applicant for the colonel’s position, he also
stated that the applicant was not considered for that position.  As such,
the former Commanding General’s statement is presumed to be based on the
assumption that if the applicant had been formally considered for the
position, he would have been found to be the best qualified applicant.
While this is certainly an honest assessment by the former Commanding
General, there is no evidence to show that the applicant was, in fact, the
best qualified officer for the position.

5.  Without clear and convincing evidence to show that the applicant was in
a colonel’s position and would have been selected for the colonel’s
position on 8 December 2001, there is no basis for granting his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___mjnt__  ___wdp__  ____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 to amend the decision of
the ABCMR set forth in Docket Number AR20040004947, on 14 April 2005.




                                  __________William D. Powers______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050013893                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060720                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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