RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         26 September 2006
      DOCKET NUMBER:  AR20050017834


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Marla J. N. Troup             |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, consideration for promotion to
colonel/0-6 (COL/0-6).

2.  The applicant states, in effect, he is requesting to be considered for
promotion in accordance with Department of the Army (DA) Selection
Memorandum, dated 22 September 2005.  He requests the effective date of his
promotion be concurrent with the 1st COL/0-6 promotion executed by the
National Guard Bureau (NGB) after the conclusion of the Fiscal Year 2006
(FY06) Army National Guard (ARNG) Title 10 Active Guard Reserve (AGR)
Career Field Review (CFR) completed in October 2005.  He states that it is
his belief that the NGB has no authority to reestablish a promotion
eligibility date (PED) that has already been established by the DA
promotion board process.  He indicates that because his PED for COL/0-6 was
established as 30 November 2001 by DA, the NGB's use of effective date of
rank for follow-on consideration within their CFR process placed ARNG Title
10 officers at a competitive disadvantage for promotion to the next higher
grade.  His effective date of rank (DOR) to lieutenant colonel (LTC) as
reestablished by the NGB was 2 July 2003, 2 months and 1 day outside of the
NGB date for consideration.  He claims his appeal of this decision was
neither denied or acted upon by the NGB.

3.  The applicant provides the following documents in support of his
application:  DA Selection Board Memoranda (LTC Memorandum, dated 21
December 2000; COL Memorandum, dated 22 September 2005; MGB-ARP-C Promotion
Memorandum to LTC, dated 2 July 2003; NGB-ARZ-T CFR Guidance, dated
18 May 2005; and Electronic Mail (e-mail) Messages).

CONSIDERATION OF EVIDENCE:

1.  On 21 December 2000, Human Resources Command (HRC), St. Louis published
a memorandum, Subject:  Eligibility for Promotion as a Reserve Commissioned
Officer Not on Active Duty.  This memorandum shows the applicant 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 PED was 30 November 2001.
The memorandum also states the PED will be used in computing time in grade
for Reserve promotion to the next higher grade.  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 United States Army Reserve (USAR) on the day following the date of
termination of Federal Recognition."
2.  Iowa ARNG Orders Number 181-073, dated 30 June 2003, show the applicant
was promoted to the grade of LTC effective 27 June 2003; however, these
orders have a hand-written annotation that indicates a promotion effective
date of 2 July 2003.

3.  NGB memorandum, dated 2 July 2003, 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 LTC effective 2 July 2003.  This memorandum
further states the applicant's PED (Date of Rank) was 30 November 2001, and
that his time in grade for promotion to the next grade will be computed
from that date.

4.  NGB Federal Recognition Orders Number 168 AR, dated 2 July 2003, show
the applicant was granted permanent Federal Recognition for promotion to
the grade of LTC effective 2 July 2003.  These orders further show the
applicant had a PED of 30 November 2001.

5.  In connection with the processing of this case, an advisory opinion was
obtained from the Chief, Personnel Division, NGB.  By law, promotion of
ARNG officers is a function of the Adjutant General of the State in
conjunction with the Director, NGB.  DA Mandatory Board selection is not
the controlling factor in the promotion of ARNG officers.  Promotion of all
AGR Title 10 officers must be approved by the Director, NGB.  In compliance
with these requirements, the Director, NGB has established the CFR process
to align eligible officers with control grade and available positions to
effect ARNG promotions.  This NGB official further stated that the CFR
process for FY07 will include those LTCs with a date of rank prior to 1
April 2003 for promotion consideration to the next higher grade in
accordance with the NGB Director's policy.

6.  On 10 July 2006, the NGB opinion was forwarded to the applicant for
review and rebuttal.  To date, he has failed to respond.

7.   National Guard/Army Regulation 600-100 (Personnel-General) prescribes
the policy and procedure governing the appointment to and assignment of
temporary Federal Recognition.  Paragraph 8-14 provides guidance on
mandatory consideration for promotion.  It states, in pertinent part, that
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.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant
Officers Other Than General Officers) prescribes policy and procedures used
for selecting and promoting commissioned officers of the ARNG, and
commissioned and warrant officers (WO) of the USAR.  Paragraph 4-21d
provides guidance on promotion effective dates.  Subparagraph d states, in
pertinent part, that AGR officers selected 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
promotion board, but who is not assigned/attached to a position in the
higher grade will be promoted on the date of assignment/attachment to a
higher graded position or the day after release from AGR status. The date
of rank will be the date the officer attained maximum TIG or the date on
which assigned/attached to a position in the higher grade, whichever is
earlier.

9.  Title 10 of the United States Code, Section 14308(f) provides legal
guidance on how promotions are made.  Subparagraph f states, in pertinent
part, 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
ARNG shall be the date in which such Federal Recognition in that grade is
so extended.

10.  NGB policy requires a CFR panel be conducted by the NGB for all
officers assigned to the AGR Title 10 program in the grade of captain,
major or lieutenant colonel.   The results of the panel, the availability
of controlled grades, Department of the Army Mandatory Promotion Board
select status, and years of active service remaining serve as the primary
management tools when determining promotion recommendations provided to
State Adjutants' General, who by law are the promotion authorities for ARNG
officer promotions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the NGB has no authority to reestablish
a PED, and as a result he should be considered for promotion to COL/0-6
based on the DA mandatory board selection results alone was carefully
considered.  However, there is insufficient evidence to support this claim.


2.  By law and regulation, the authority to promote ARNG officers rests
with the State Adjutant General, in conjunction with the Director of the
NGB.  All promotions in the ARNG are based on position availability and
resource allotment.

3.  The CFR panel with which the applicant takes issue is merely a
management tool used by the NGB to properly manage available positions for
Title 10 AGR officers.  There is no evidence of record, and the applicant
has failed to provide evidence, showing that the NGB authorized a LTC
control grade Title 10 AGR position for the applicant until 2 July 2003, at
which time he was promoted and granted Federal Recognition in that grade.


4.  Upon his selection for promotion to LTC by the DA RCSB, the applicant
could have elected to immediately transfer to the USAR to accept the
promotion.  However, there is no evidence showing he elected this option.

5.  Absent evidence to show the applicant was assigned to an authorized LTC
position prior to his promotion on 2 July 2003, or that there was a
manifest error in the promotion procedures employed during his promotion to
LTC, there is an insufficient evidentiary basis to grant the requested
relief.

6.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MJNT _  __CAD__  __EEM__  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.




                                  _____Marla J. N. Troup____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050017834                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006./09/26                             |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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