RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 June 2007
      DOCKET NUMBER:  AR20060009543


      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.

|     |Ms. Barbara J. Ellis              |     |Director             |
|     |Ms. Judy L. Blanchard             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Frank C. Jones                |     |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, in effect, that the Army Board for Correction
of Military Records (ABCMR) direct that his record be corrected as follows:


      a.  To show his name was submitted to the United States Senate
Confirmation as a result of the National Guard Bureau (NGB) Career Field
Review (CFR).  That he was on the list of Active Guard Reserve (AGR) T-10
officers considered for assignment and for promotion during the Fiscal Year
(FY) 2003.  That his name be listed among those selected for assignment and
subsequent promotion to colonel effective 22 February 2003, by the NGB
TARP/CFR.  He also requests that the Table of Distribution and Assignment
(TDA) position that he was assigned to at the time be authorized to be
filled by a Colonel;

      b.  Further, that the Tennessee Army National Guard (TNARNG) promoted
him to Colonel, with an effective date of 22 February 2003;

      c.  Indicate that the NGB extended him Federal recognition at the rank
of Colonel effective 22 February 2003, as a result of the Senate
Confirmation;

      d.  Direct that all documents associated with his April 2006 military
retirement indicate that he retired in the rank and pay grade of 06, with a
date of rank (DOR) of 22 February 2003; and

      e.  Direct the Defense Finance and Accounting Service to conduct an
audit of his active and retired records and pay him the difference in all
pay and entitlement between Lieutenant Colonel and Colonel pay that is due.

2.  The applicant states, in effect, that the NGB routinely conducts an
annual CFR panel for title 10 AGR officer’s who will, during the course of
the upcoming year, reach minimum time in grade (TIG) for promotion to the
next higher grade or who have been selected for promotion by a DA promotion
board.  The applicant further states, in effect, that on 20 May 2004, the
Army Board for Correction of Military Records found in his favor to correct
his federally recognized DOR as a Lieutenant Colonel from 1 July 2003 to 22
July 2000.  This decision established the fact that as of 22 February 2003,
he was eligible for a minimum time in grade promotion to Colonel, despite
the fact that he was actually serving as a Major on that date.  It further
established that he should have been considered by the NGB TARP or the CFR,
for assignments and promotions to be made at the NGB that year.  He adds,
in the normal course of


events it stands to reason that the Chief National Guard Bureau, Director
Army National Guard and The Adjutant General of the state of Tennessee
would have taken action to promote him at the minimum time in grade to
Colonel.  The result would have been that he would have been promoted to
Colonel prior to the conduct of the 2003 Mandatory Promotion Board from
Lieutenant Colonel to Colonel.  The fact that his DOR as a Lieutenant
Colonel was established by the ABCMR after the actual conduct of the
original review of FY 2003 actions now means that the NGB in effect did not
afford him the same promotion opportunity as those officers (his peers) who
were promoted to Lieutenant Colonel at or near his federally recognized DOR
to Lieutenant Colonel of 22 February 2000.  The applicant also states that
the NGB has no policy or regulatory provisions in place to conduct a
standby review board in order to account for material errors or factual
omissions that may have been present in any officer’s file during the
initial conduct of the annual review.  In order to correct this inequity it
is logical that the ABCMR now direct that his promotion to Colonel be
effective with a DOR of
23 February 2003, due to the fact that in the normal course of events, The
Adjutant General of the state of Tennessee, the Director Army National
Guard and the Chief National Guard Bureau should have taken action to
promote him to Colonel with Federal Recognition effective 23 February 2003.

3.  The applicant further states that a series of actions by his chain of
command in response to the ABCMR’s, original decision to grant him relief
in AR2004104037 discouraged him from seeking further relief from the ABCMR
prior to his retirement.  The applicant claims his Division Chief told him
that his application to the ABCMR undermined the integrity of the officer’s
promotion system and directed the applicant not to file an appeal with the
ABCMR.  The applicant claims the G-1 division chief threatened him with a
15-6 investigation and ultimately reassigned him from his position as the G-
1 chief of the DA Actions Branch to a Strategic Planning position in the
ARNG G-5.  The applicant therefore avoided any other appeals or attempts to
redress his promotion in order to avoid further retaliating actions.

4.  The applicant provides the following documents in support of his
application:

      a.  Memo AHRC-MSL-N dated 16 June 2005, Subject: Notification of
Promotion Status;

      b.  Memo AHRC-MSL-N dated 17 February 2005, Subject: Notification of
Promotion Status;

      c.  AHRC-MSL-P Memo to Officer to be considered for Colonel, Army
Promotion list Board;

      d.  Correspondence from SFMR-RBR dated 20 May 2004 to the applicant;

      e.  Memo DAJA-AL  1997/2190 dated 5 February 1998, Subject Legal
opinion regarding National Guard Bureau Tour Advisory Review Panels; and

      f.  Electronic Mail (e-mail) Messages.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed a Second
Lieutenant in the United States Army Reserve on 8 May 1981.  The applicant
was promoted to First Lieutenant on 26 May 1984 and served in that grade
until he was transferred to the TNARNG on 20 September 1984.  The applicant
was promoted to Captain on 26 June 1986 and was promoted to Major on
23 February 1993.  In 1994, the applicant was transferred to the NGB,
Readiness Center.

2.  The applicant's records were considered by the 1999 Army Reserve
Component Selection Board (RCSB) for promotion to the rank of Lieutenant
Colonel.  On 1 December 1999, the applicant was assigned to an authorized
Lieutenant Colonel position by NGB Orders 152-3, dated 31 May 2000.

3.  The President approved the results of the 1999 RCSB major to Lieutenant
Colonel board on 3 January 2000 and those results were released on 14
January 2000.

4.  A memorandum dated 9 May 2000, from the U.S. Army Human Resources
Command-St. Louis stated that the applicant was recommended for promotion
to Lieutenant Colonel with an effective date of 22 February 2000.  The
TNARNG published promotion orders number 181-150, dated 30 June 2003,
promoting the applicant to Lieutenant Colonel effective 30 June 2003.

5.  Department of the Army Federal Recognition Orders Number 167 AR, dated
1 July 2003, shows that the applicant was awarded permanent Federal
Recognition in the grade of Lieutenant Colonel with an effective date of 1
July 2003.  These orders also show that the applicant has a promotion
eligibility date of 22 February 2000.

6.  In December 2003, the applicant requested correction of his DOR to this
Board.

7.  On 11 May 2004, the Army Board for Correction of Military Records
(ABCMR) determined that there was sufficient evidence to warrant relief.
The ABCMR recommended that the applicant’s Lieutenant Colonel DOR be
adjusted from
1 July 2003 to 22 February 2000; that the Federal Recognition Order Number
167 AR be amended to show he was extended permanent Federal Recognition
effective 22 February 2000; and that he be paid all pay and allowances due
him based on his corrected date of rank.  The evidence reviewed by the
ABCMR and the ABCMR’s decision in that case is incorporated in this
decision by reference.

8.  On 4 August 2004, Federal Recognition order number 192 AR was issued
amending the applicant’s promotion with an effective date of 22 February
2000, based on approved ABCMR proceedings, dated 11 May 2004, docket number
AR2004104037.

9.  HRC St. Louis sent a memorandum, dated 15 December 2004, to the
applicant for notification of promotion status to Colonel, as a first time
non select for the Board that convened on 13 July 2004.

10.  On 17 November 2005, HRC St. Louis notified the applicant that a
Colonel promotion board that convened on 12 July 2005 did not select him
for promotion. The applicant requested that his record appear before a
Special Selection Board (SSB).

11.  On 16 June 2005, HRC St Louis sent a memorandum of notification
informing the applicant that he was not selected for promotion to Colonel
under the Department of the Army, Special Selection Board.  The specific
reasons for the non selection are not known, because selection boards do
not record their reason for non- selection.

12.  The NGB, CFR panel order of merit lists completed in FY 2002, 2003,
2004, and 2005 revealed that the applicant either placed in the middle or
the bottom third for consideration to the next higher grade or assignment.

13.  The Federal recognition special order number 96 AR, dated 13 April
2006 was published withdrawing Federal recognition and transferring the
applicant to the United States Army Reserve/Retired effective 31 March
2006.

14.  In connection with the processing of this case, an advisory opinion
was obtained from the Chief, Personnel Division, NGB.  The NGB recommended
disapproval on the applicant’s request, due to the fact that the applicant
was never assigned to a 0-6 position during the time frame of his request;
the applicant was assigned to a Lieutenant Colonel position in the
Personnel Division as the DA Actions Branch Chief.  He was also a three
time non select for promotion to Colonel by the Department of the Army
Mandatory promotion board, in 2004, 2005 and he was not selected by a
Special Selection Board in 2005.

15.  The NGB official further states, that the ABCMR amended the
applicant’s DOR from 1 July 2003 to 22 February 2000.  The approved DOR
from the ABCMR made him eligible to be considered for promotion to Colonel
with minimum (TIG), despite the fact that the applicant was actually
serving as a Major in 2000.  The applicant also contends that he should
have been considered by the NGB, CFR Review Panel for a higher grade
assignment and promotion made in FY 2003.  The NGB CFR panel order of merit
list conducted in FY 2002, 2003, 2004, and 2005 revealed that the applicant
placed in the middle or the bottom third for consideration to the next
higher grade or assignment.

16.  In accordance with the National Guard Regulation 600-100, chapter 8,
paragraph 8-6 states that promotion criteria will be based on efficiency,
time in grade, demonstrated command and ability, military civilian
education, and potential for service in the next higher grade.  Promotion
will not be used solely as a reward for past performance.  Promotion will
be accomplished only when the officer is assigned to an appropriate MTOE or
TDA vacancy in the higher grade in the unit.  Active Guard Reserve (AGR)
Control grade authorization must be available prior to promotion of AGR
officer to any grade above Captain.

17.  On 25 March 2007, the NGB opinion was forwarded to the applicant for
review and rebuttal.  In summary the applicant did not agree with the
recommendation or conclusions noted in the NGB opinion.  Additionally he
believes that the key individuals involved in preparing and approving the
unfavorable opinion should not be considered qualified to submit an
official advisory opinion concerning this matter.  Their level of personal
knowledge and obvious conflict of interest should have resulted in them
declining to submit an opinion regarding this matter.  As he noted in his
initial application to this Board, his civilian employment brings him into
contact with numerous key staff and leaders at the NGB on a frequent basis.
 This in itself raises questions of undue influence and fear of possible
reprisal actions when those individuals are then provided an opportunity to
review a request such as the one that he submitted and to then prepare an
advisory opinion that involves actions they were directly involved in
during the recent past.  In addition to the questions of an impact on his
current civilian employment there are even more serious issues that include
the involvement of individuals with past actions related to this case in
the submission of an official advisory opinion.  It does not appear proper
or just to accept an advisory opinion from Colonel W----n, based on the
fact that she is currently serving in a position that places her in a
direct rating chain under the direction of BG N-----l.  These are the same
people who reprised against the applicant for filing his prior ABCMR
request and discouraged him from seeking further relief from the Board.
The unfavorable opinion that was provided to the ABCMR from the Personnel
Division in the Army Directorate at the National Guard will create the
appearance of administrative irregularities if it is considered in the
proceedings regarding consideration of this request to the ABCMR.  The
applicant believes his discussion that was provided to the ABCMR in
response to the unfavorable opinion submitted to this Board from the
National Guard Bureau shows that the ABCMR should now grant full relief to
his request for promotion to colonel.

18.  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-
21(d) 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.

19.  Section 14304 of Title 10 United States Code provides the legal
authority for eligibility for consideration for promotion based on maximum
years of service in grade provisions of the law.  Subsection (a) states, in
pertinent part, that officers shall be placed in the promotion zone and
shall be considered for promotion to the next higher grade by a promotion
board convened under section 14101(a) of this title far enough in advance
of completing the maximum years of service in grade so that, if the officer
is recommended for promotion, the promotion may be effective on or before
the date on which the officer will complete those years of service.  The
table in subsection (a) establishes the maximum years of service in grade
for a captain to be promoted to major as seven years and for a major to be
promoted to lieutenant colonel as seven years.

20.  10 US.C 14303 (b) provides that an officer serve 3 years time in grade
as a Lieutenant Colonel in order to be eligible for promotion to Colonel.

21.  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.

22.  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 contentions of the applicant were carefully considered and found to
be insufficient to grant the requested relief.  The evidence of record
confirms that the applicant was a two time non-select for promotion to
Colonel and also a non select by the SSB for Colonel.  Therefore, absent
evidence to show the applicant was assigned to an authorized Colonel
position, or that there was a manifest error in the promotion procedures,
there is an insufficient evidentiary basis to grant the requested relief.

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.  Among the applicant’s contentions is the argument, in effect, that he
was disadvantaged before his promotion boards for Colonel and his SSB
because his effective date of promotion to Lieutenant Colonel was not
corrected by the ABCMR until 11 May 2004.  As a result, his Officer
Evaluation Reports considered by the Board were in the rank of Major versus
Lieutenant Colonel.  The Board notes this contention and finds it provides
no basis for relief.  The applicant obviously knew the error in his records
when the NGB did not promote him in February 2000.  However, he failed to
show in his application in AR2004104037 that he took direct and immediate
steps to correct this error.  Although the applicant was entitled to relief
in that case he is not entitled to additional consideration for the delay
in his promotion.

4.  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 in support of his requests.  The applicant’s
contention that he would have been promoted to Colonel if the NGB had a
procedure to conduct a supplemental CFR review based on the ABCMR’s
original decision is speculative, at best.  The applicant offers no
evidence to show with a reasonable degree of certainty that he would have
been selected for assignment to a Colonel position and subsequently
promoted.  As a result, the applicant’s contention is speculative and
insufficient as a basis for relief.

5.  Based on all of the foregoing, there is no error or injustice in the
promotion procedures to Colonel.  There is no evidence and the applicant
has not provided sufficient evidence which shows the Adjutant General of
the State of Tennessee intended to promote him to the grade of Colonel.
Therefore, there is insufficient evidence to warrant the requested relief.

6.  In his application and in his response to the advisory opinion, the
applicant essentially alleges that his command committed a prohibited
reprisal action against him in response to the original ABCMR application
and grant of relief.  The applicant further alleges that the individuals
involved in rendering the advisory opinion in this case should not have
provided an opinion based on their prior interaction with him.  The Board
finds these claims lack merit.  The mere fact that the individuals involved
in the advisory opinion know the applicant or served with him in the past,
either in a supervisory or subordinate position, does not automatically
prevent their input in this case.  The applicant has failed to show the
individuals involved in the advisory opinion acted with anything but
professional and objective motivations.  The e-mails provided by the
applicant do not change this equation.  Therefore, the applicant has no
basis for appeal as the ABCMR granted him all possible relief available
under the ABCMR’s jurisdiction.

7.  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

___BJE__  ___FCJ__  ___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 for correction of the
records of the individual concerned.




                                  __  __Barbara J. Ellis____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/06/19                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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