RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20050018083


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawiy 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 reconsideration of the following:

      a.  Reinstatement to constructive Active Guard Reserve (AGR) duty in
October 1998 when he was offered and accepted an assignment for initial AGR
entry, after his selection in December 1997 by the AGR Entrance
Qualification Board (EQB) and placement on the Order of Merit List (OML);

      b.  Setting aside of his second and subsequent non-selections for
promotion to the rank of major (MAJ)/O-4, beginning with the calendar year
(CY) September 1998 Active Duty List (ADL);

      c.  Reconsideration for promotion to the rank of MAJ/O-4 by Special
Selection Boards (SSB) in the United States Army Reserve (USAR) non-active
duty, beginning CY 1998 and thereafter;

      d.  If selected for promotion to the grade of rank of MAJ/O-4,
retroactive promotion; award of back pay and allowances, offset by captain
(CPT)/O-3 pay received during the interim period while serving as an active
duty CPT, until retiring in July 2004; then award of retired back pay
differential; and

      e.  Expungement or correction of related adverse documents (i.e., the
appropriate promotion non-selections; set aside his November 1999 Selective
Continuation on Active Duty; add non-prejudicial statements to the
applicant's records explaining retroactive promotion to MAJ/O-4 and non-
rated MAJ/O-4 time while serving as a CPT/O-3.

2.  The applicant, in effect, defers to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states, in effect, that the applicant was an active duty CPT in
the USAR when he submitted an application for the AGR Program in March
1997, along with necessary waivers with his application.  The applicant was
selected by the AGR EQB in December 1997 and conditionally placed on the
OML because he had over 13 years of active federal service (AFS).  Counsel
states, in effect, that the applicant's former battalion commander, two
fellow officers, and spouse all recall they learned from the applicant that
he had been notified by letter of his selection by the EQB for the AGR
Program and his placement on the OML.  Counsel offers that the selection
notice as described by the applicant was a nearly identical letter sent to
(then) CPT M_____ J_____ in January 1998, who counsel represented in ABCMR
Docket Number AR2001056808.

     a.  Counsel states, in effect, that the applicant was notified of his
first non-selection for promotion to MAJ (ADL) in October 1998 and was
anxious whether the non-selection would affect his pending AGR assignment
search by the Full Time Support Management Directorate (FTSMD),
particularly with only 90 days left in the 12-month window.  Counsel also
states, in effect, that the applicant solicited the assistance of another
CPT who was in the AGR Program and was advised to call the Director of
FTSMD; however, he was unable to make direct contact with him.  Counsel
adds, in effect, that there was some concern expressed that the applicant's
current service obligation might interfere with a lateral transfer from the
ADL to the AGR Program; however, it was determined it would probably not be
an issue.  Counsel further states, in effect, that the applicant was then
contacted by a representative of the FTSMD, Accessions Branch, who offered
the applicant two assignments: a Signal Corps (CPT) assignment in Minnesota
and a branch immaterial (MAJ) assignment in Houston, Texas.  Counsel states
the applicant verbally expressed his acceptance of either of the two
assignments.  Counsel then relates, in effect, that the applicant called
back to the FTSMD the next day and spoke with the Officer in Charge (OIC)
of the FTSMD, Accessions Branch, who withdrew the offer concerning the two
duty assignments.

     b.  Counsel offers that it is significant to point out that in Docket
Number AR2001056808, the ABCMR relied on that applicant's self-authored
version of a "sequence of events" to substantiate the applicant's assertion
that he was offered and accepted a position.  Counsel maintains that
"…during the [applicant's] legal consultation and thereafter [counsel]
never provided him or his wife with counsel's legal brief submitted on
behalf of CPT J_____.  Nor was [the applicant] provided the J______ [A]BCMR
decision."

     c.  Counsel states that the applicant initiated a Congressional
inquiry with Senator D_____ N______ protesting the unfair treatment by the
FTSMD and the OIC of the Accessions Branch.  Counsel also states that the
OIC committed the same injustice with CPT J_____, in March 1998, who filed
an Inspector General (IG) complaint.  Counsel adds that the IG responded to
CPT J_____ indicating "it was not fair and the AGR was considering
rectifying this systemic issue."  Counsel further states, in effect, that
it is inexcusable that the AGR did nothing and allowed another officer
(i.e., the applicant) to suffer the exact same injustice in October 1998.
Counsel adds that, in response to Senator N______'s letter, "[i]n February
1999 [the Director] FTMSD replied to Senator _______ that [the applicant]
would require a waiver so they would not give him a job "at this time"."
     d.  Counsel points out that the ABCMR previously stated that the
applicant's self-authored timeline did not substantiate selection by the
AGR EQB in December 1997 and placement on the OML.  He adds that this new
evidence offers official substantiation to the applicant's timeline and
that the Director, FTSMD's letter does not contradict neither the
applicant's nor CPT J_____'s assertions concerning the actions of the FTSMD
AGR Accessions team.

     e.  With regard to the advisory opinion issued by the Office of the
Chief, Army Reserve (OCAR) concerning CPT J_____'s case in ABCMR Docket
Number AR201056808, counsel states that the ABCMR "saw through this
transparent word-play" in the language (i.e., "offered a position" versus
"AGR accession team contacted J_____ to discuss his accession into the
AGR").  Counsel states, in effect, "[a]lso at stake here is the notion of
fundamental fair play in uniformly applying administrative decisions to
identical facts."  He adds, "it would be another injustice inflicted upon
[the applicant] if the Board's past reasoning was not given similar
decisive weight here."  Counsel also asserts that since the Army decided
that the applicant possessed enough value for selective continuation on
active duty, and he remained an outstanding performer to serve the Army
honorably when he retired in July 2004 at 20 years, this is analogous to
the FTSMD, Accession's Branch, granting a time-in-grade waiver to retain
the applicant on AGR duty to 20 years.

     f.  Counsel cites several court cases that, in effect, affirmed when
an agency undertakes informal adjudication it is not free to make ad hoc
decisions that ignore prior related cases, practices, or norms and that
judicial deference is inapplicable "when an agency fails to distinguish
contradictory decision[s] rendered in similar cases."  Counsel also cites
the 1996 Department of Defense (DoD) Report on Boards for Correction of
Military Records which recommends systemic changes within the current
framework to guard against disparate outcomes in like cases.  Counsel also
states this is consistent with intent in the military equal protection
statute, 10 U.S.C, 10209, which prohibits discriminatory application of law
between reserve officers.  Counsel concludes by stating that, in the
interests of justice, the applicant's case should be reconsidered and the
applicant granted relief.

2.  Counsel provides the following exhibits:  [Counsel's labeling scheme is
used for simplicity):

      Exhibit 1:  Department of the Army, Board for Correction of Military
Records, Arlington, Virginia, letter, dated 14 December 2004, subject:
Docket Number AR2003099214 [pertaining to the applicant].

      Exhibit 2:  United States Senate, Washington, DC, letter, dated 4
February 1999, from Senator D__ N______ to Applicant, with enclosure:
Headquarters, U.S. Army Reserve Personnel Command (AR-PERSCOM), Officer
Management Division, St. Louis, Missouri, letter, dated 22 January 1999, to
Senator N______ concerning accession of the applicant into the AGR Program.

      Exhibit 2-A:  Electronic mail (email) message, dated 18 July 2005,
from applicant to counsel, subject:  Congressional, in which he informs
counsel he found the letters (see Exhibit 2).

      Exhibit 3:  Letter from Mr. T____ C____ (former S1, Adjutant, 72nd
Signal Battalion) to the ABCMR, dated 1 March 2005, stating he assisted the
applicant with his AGR packet and recalls the applicant mentioning he
received a letter that he was selected for the AGR Program and placed on
the OML.

      Exhibit 4:  Letter from Colonel H_____ W. N_____, Chief, Information
Officer and Director, SCJ6 (former Commander, 72nd Signal Battalion), dated
6 April 2005, subject Army Reserve Active Guard Program - [Applicant's
Name], stating he assisted the applicant with his AGR packet and recalls
the applicant telling him he received notification that he was selected for
the AGR Program and placed on the OML.

      Exhibit 5:  Memorandum for Record from Major E___ R. G_____ (former
Commander, Headquarters and Headquarters Company, 72nd Signal Battalion),
dated 11 May 2005, subject:  AGR Packet and [Applicant's] Placement on the
OML, stating the applicant shared with him the news that he had received
notification that he was selected for the AGR Program and placed on the
OML.

      Exhibit 6:  Letter from Mrs. S______ M. L_____-S___, applicant'
spouse, to the ABCMR, dated 12 May 2005, stating she saw the letter the
applicant received telling him that he was selected for the AGR Program and
placed on the OML.  She also attests to the information outlined in the
applicant's "Sequence of Events" for October and November 1998 (see Exhibit
I).

      Exhibit 7:  Notarized statement concerning spouse's letter, dated 9
June 2005.

      Exhibit 8:  Sequence of Events, as of 9 November 1998, pertaining to
ABCMR Docket Number AR2001056808 (SFC M_____ F. J_____) which shows the
timeline reflecting his recollections of the events surrounding his
selection for the AGR Program and communications with the FTSMD, Accessions
Branch.

      Exhibit 9:  Supplemental Statement of M_____ F. J_____, Sergeant
First Class, subject: ABCMR Docket Number AR2001056808 (pages 1, 8, 9, 10 &
11).

      Exhibits E, F, F-2, I, J, K, M & O:  The same as in original
application, except for Exhibit O (which was formerly, the Supplemental
Statement of the request and supporting arguments in the case cited in
Exhibit 9, above); replaced by Exhibit O:  Headquarters, U.S. Army Reserve
Personnel Center, Operations Division, St. Louis, Missouri, letter, dated
10 January 1998, to CPT M_____ F________ J_____ concerning accession of the
applicant into the AGR Program.

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
AR2003099214, on 30 November 2004.

2.  The applicant served a Regular Coast Guard (USCG) active duty
enlistment and was separated and transferred to the USCG Reserve on 27
September 1985.  He had 4 years and 2 months of active duty service.

3.  On 12 May 1988, the applicant was appointed a commissioned officer in
the USAR.  He was assigned to the Signal Corps branch and accepted a
concurrent call to active duty.  He continued on indefinite active duty,
progressed normally, and was promoted to captain with a date of rank and an
effective date of
1 January 1993.

4.  On 22 November 1999, the applicant was notified of his second non-
selection for promotion on the ADL, but that he had been selected for
continuation of active duty to give him sufficient time to retire.  The
applicant's mandatory retirement date was established as 31 August 2004.
He retired from active duty, in the grade of rank of CPT/O-3, after
completing 20 years, 1 month, and 25 days of total active service.

5.  In support of his request for reconsideration of his application, the
applicant provides letters from his former battalion commander, former
battalion S-1, former outgoing company commander, and spouse, in which, in
pertinent part, they attest to the fact that some time in early 1998 the
applicant shared with them information concerning his selection for the AGR
Program and his placement on the OML.

6.  The applicant also provides a copy of a letter to Senator D_____
N______, dated 19 November 1998, in which he relates, in pertinent part,
that he was unable to personally contact the Director, FTSMD; however, in
response to the applicant's inquiries a representative of the FTSMD,
Accessions Branch, contacted him.  This letter also shows that the
Accessions Branch representative "was very helpful and told be (sic) that
there were no MAJ (O4) jobs available in my branch at this time.  However,
there was one MAJ (O4) job in Houston that is branch immaterial, and a CPT
(O3) job in Minnesota available that is in my branch.  She informed me that
I would have to sign a statement, because I'm a senior CPT, stating that I
would hold that CPT position for at least three years."  However, the
applicant's letter also shows that the FTSMD, Accessions Branch,
representative advised the applicant "to call back the next day because she
had to confer with her supervisor."

7.  In addition, the applicant provides a copy of a letter from Senator
D_____ N______, along with a letter from the Director, FTSMD (AR-PERSCOM)
that was sent in response to the applicant's letter to the senator.  In his
letter, the Director, FTSMD states, in pertinent part, that "[a]though
service members with more than 13 years active Federal service are boarded
for accessioning purposes and are conditionally placed on our Order of
Merit List, they are considered only after all others who do not require
waivers, if a requirement exists (emphasis added).  Placement on the Active
Guard Reserve Order of Merit List is not a guarantee that a service member
will be accessioned into the [AGR] Program.  The Director, FTSMD continues
by stating "[d]uring the past year, a position requiring Captain S___'s
branch and functional area, commensurate with his grade requirement was not
available.  Therefore, Captain S___ has not been accessioned into the
Active Guard Reserve Program."

8.  Army Regulation 135-18 (The Active Guard Reserve Program) prescribes
the policy and procedures for the administration of the AGR Program.  It
provides the Army policy for the selection, utilization, and administration
of the Army National Guard of the United States (ARNGUS), and U.S. Army
Reserve personnel serving in the AGR Program.  USAR personnel serve on
active duty under Title 10, U. S. Code (USC), section 10211, 10302(h),
12301(d), and 12402.

9.  Paragraph 2-7b of Army Regulation 135-18 states that AGR selection
boards will be convened at least annually to consider new applicants.  The
Chief, National Guard Bureau (CNGB) and Chief, Army Reserve (CAR) will
establish appropriate procedures to verify the eligibility of applicants
for the AGR Program. Validated applicants will be placed on a list of
personnel eligible and available for consideration for order to active
duty.  An AGR selection board may select Soldiers with a waivable
disqualification conditionally.  The requests for waiver accompanying their
applications will be submitted to the appropriate waiver authority.  If the
waiver is approved, the selection is validated and the individual will be
retained on the list of selected personnel.  If the waiver is disapproved,
the applicant’s name will be removed from the list of selected personnel.
Requests for waivers for personnel not selected by the AGR selection board
will be returned without action.

10.  Army Regulation 140-30 (Active Duty in Support of the United States
Army Reserve (USAR) and Active Guard Reserve (AGR) Management Program)
prescribes policy and procedures for selecting, assigning, attaching,
using, managing, and administering USAR Soldiers on active duty in the AGR
Program. It establishes a personnel management system for managing AGR
Soldiers through the following: (1) selection for accession and
continuation in the AGR Program; (2) promotion; and (3) selection for
schooling and training.  Paragraph 1-15 of the regulation states that the
Commanding General, AR-PERSCOM, will maintain a current list of approved
AGR positions and positions vacancies, and announce when applications will
be accepted for the AGR Program for positions to be filled from the
centralized Headquarters, Department of the Army, recommended list.

11.  Paragraph 3-2 (Qualification requirements) of Army Regulation 140-30
states, in pertinent part, that to be eligible for the AGR Program,
Soldiers entering on an initial or subsequent AGR tour must sign a DA Form
5646-R (Statement of Conditions of Service - Active Guard Reserve).  If the
Soldier has previously signed the DA Form 5646-R in conjunction with entry
into a previous AGR tour, a new form need not be completed if the new tour
begins within
48 hours of the expiration of the previous tour.

12.  Paragraph 3-3 (Accession process) of Army Regulation 140-30 states the
CAR will convene a Department of the Army accession board to recommend new
Soldiers for the AGR Program.  At a minimum, this will be done annually.
The CAR may prescribe a number to be selected for grade and corps and
specialty. The best qualified selection method will be used.  The complete
accession process consists of the following:  (1) an announcement
requesting applications for the AGR Program; (2) a signed and dated
application from the USAR Soldier; (3) a recommendation for active duty
through the appropriate selection process. (4) acceptance of an AGR
attachment by the Soldier; and (5) orders to active duty in an AGR status
with TDY en route to the Army Reserve Readiness Training Center (ARRTC),
Fort McCoy, Wisconsin.

13.  Paragraph 3-3g of this Army regulation also states that the names of
Soldiers who are recommended by a DA accession board will be retained on
the approved recommended list until one of the following actions occurs:
(1) they are ordered to active duty; (2) they request their name be removed
from the list;
(3) their name is removed or deleted from the list under paragraph 3-7e; or
(4) one year has elapsed since their name was placed on the list (emphasis
added).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was recommended for
acceptance into the AGR Program by the AGR EQB and placed on the OML in
December 1997.  However, this recommendation neither entitled nor
guaranteed the applicant entrance on active duty in the AGR Program.

2.  The applicant and his spouse both contend that in October 1998, the
applicant was offered two positions in the AGR by a representative of the
FTSMD, Accessions Branch, including a branch specific position in the grade
of CPT and a branch immaterial position in the grade of MAJ.

3.  There is no evidence of record that shows the applicant was ordered to
active duty in the AGR Program or that he completed and signed a statement
that he would serve in a captain position for at least 3 years.  There is
also no evidence of record that shows the applicant submitted a second
application for the AGR Program to be considered for selection in the AGR
Program following the expiration of his initial year on the AGR OML in
December 1998.  Further, the evidence of record fails to show the applicant
was placed on an approved AGR recommended list for consideration of his
selection and accession into the AGR Program subsequent to December 1998
and prior to his second non-selection for promotion on the ADL, when he
became ineligible for the AGR Program.

4.  The evidence of record shows that, after notification of his non-
selection for promotion in October 1998, the applicant initiated action to
contact the Director, FTSMD because he was "anxious whether the non-
selection would affect his pending AGR assignment search by FTSMD,
particularly with only 90 days left in the 12-month window."  In response
to the applicant's efforts to contact the Director, FTSMD, a representative
of the FTSMD, Accessions Branch, was instructed to contact the applicant.
The evidence of record also shows that the representative of the FTSMD,
Accessions Branch, contacted the applicant and discussed two particular AGR
positions that the applicant might be eligible for.  There is no evidence
that the applicant completed a statement of acceptance for assignment to an
AGR position.  In fact, the evidence of record provided by the applicant
shows this conversation consisted of the type of information that would be
exchanged between an assignment officer and a candidate in a general
discussion of potentially available assignments, absent the consideration
of the credentials and relative standing of other eligible candidates on
the OML, related assignment considerations/issues, and the necessary follow-
on consultations with appropriate FTSMD managerial officials.  Moreover,
the evidence of record fails to support the applicant's contention that
this conversation constituted notification of his selection for accession
into the AGR Program (emphasis added) and an offer of an assignment to a
fill a position requirement in the AGR Program.

5.  The applicant's counsel contends that the events between the
applicant's case and that of M_____ F. J_____ are similar; however, there
is a notable difference between the two cases.  In ABCMR Docket Number
AR2001056808 the evidence of record revealed that the applicant was
contacted by an official of the FTSMD, Accessions Branch, just six days
after receipt of the initial letter notifying him of his entrance into the
AGR Program, whereupon the official offered the applicant a branch specific
position in the next higher grade
(i.e., MAJ).  However, in this case, the applicant received a telephone
call from a representative of the FTSMD, Accessions Branch, in response to
an inquiry he initiated concerning his status in the AGR Program, given
that his 1-year eligibility on the OML expired in approximately 2 months
(i.e., December 1998).  Moreover, the evidence of record in this case shows
that the Director, FTSMD's official response to Senator N______, on 22
January 1999 (at a period in time that was in close proximity to the events
concerning the applicant's AGR application), clearly stated that the
applicant was not accessioned into the AGR Program because a position
requiring his branch and functional area, commensurate with his grade, was
not available (emphasis added).  Consequently, the applicant and his
counsel provide insufficient evidence to overcome the preponderance of
evidence that shows a position requiring the applicant's branch and
functional area, commensurate with his grade, was not available and/or that
the applicant should have been accessioned into the AGR Program.
Therefore, there is insufficient evidence to show the applicant was
accessioned into the AGR Program and extended an offer to fill a required
position in the AGR Program in this case.

6.  ABCMR Docket Number AR2001056808, which counsel offers in support and
as related to the case under review, dealt primarily with the issue of the
proper processing of a request for waiver pertaining to the applicant and
its impact on his standing on the AGR OML after the applicant's acceptance
into the AGR Program and upon being extended an offer to fill a required
position in the AGR Program (emphasis added).  There is no evidence of
record that shows that the processing of the applicant's request for a
waiver, which he submitted with his application for the AGR Program, or his
standing on the AGR OML is at issue in this case.  Moreover, there is
insufficient documentary evidence to show that the applicant was
accepted/accessioned into the AGR Program and offered a position requiring
his branch and functional area, commensurate with his grade.  Consequently,
the facts and circumstances between ABCMR Docket Number AR2001056808 and
this case are not identical.  Therefore, the notion of uniformly applying
administrative decisions is not applicable, in this instance.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___ALR__  __LMB__  ___QAS _  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 AR2003099214, on 30 November 2004.




                                           _Allen L. Raub_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008083                           |
|SUFFIX                  |                                        |
|RECON                   |20060912                                |
|DATE BOARDED            |20041130                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |102.0000.0000                           |
|2.                      |131.1100.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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