RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 November 2007
	DOCKET NUMBER:  AR20070001463 


	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. Catherine C. Mitrano

Director

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	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 that his name be submitted to the U. S. Senate for confirmation as a colonel (COL), O-6 effective 1 October 2003; following confirmation, that his records be corrected to indicate that as a result of the National Guard Bureau (NGB) Tour Advisory Review Panel (TARP)/Career Field Review that recommended Army National Guard (ARNG) Active Guard Reserve (AGR) Title 10 officers for assignment and promotion during fiscal year 2004 (FY04) that his name be listed among those selected for assignment and subsequent promotion to COL as of 30 September 2003; that the Texas ARNG (TXARNG) promoted him to COL in the TXARNG effective 1 October 2003; that he was extended Federal Recognition in the rank of COL effective 1 October 2003; that all documents associated with his 31 May 2006 mandatory removal date (MRD) indicate his rank and pay grade as COL, O-6 with a date of rank (DOR) of 1 October 2002; that he be paid the difference in active duty and retired pay/allowances between lieutenant colonel (LTC) and COL due as a result of those corrections, and that he be paid retired pay as a COL, O-6.

2.  The applicant states that, in June 2005, the Army Board for Correction of Military Records (ABCMR) corrected his LTC DOR from 25 June 2004 to            1 October 1999.  That action established the fact that as of 1 October 2003 he was eligible for a minimum time in grade promotion to COL and should have been considered by the NGB TARP.  In the normal course of events the ARNG would have taken action to promote him at the minimum time in grade point to COL, which would have resulted in his promotion to COL prior to the conduct of the 2004 Mandatory Promotion Board.

3.  The applicant states it is logical to consider the points noted in paragraphs     2 through 2d of the 5 February 1998 memorandum from the Office of The Judge Advocate General (OTJAG).  The memorandum indicates that NGB’s use of an annual review meets the provisions of the law as far as promoting officers at the minimum time in grade point.  It indicates that based on NGB’s annual review of Title 10 AGR officers, the Chief, NGB (CNGB), and Director, ARNG (DARNG) will work in conjunction with each officer’s State Adjutant General to first assign the officers to a position authorized the next higher grade and then take action to promote that officer.  The fact that his DOR as an LTC was established by the ABCMR after the actual conduct of the original review for the FY04 actions now means that NGB in effect did not afford him the same promotion opportunity as his peers who were promoted to LTC at or near his Federally Recognized DOR to LTC of 1 October 1999.  


4.  The applicant states there was no policy or procedural mechanism in place at NGB to correct this action, since NGB does not conduct standby reviews in order to account for material errors and factual omissions that may have been present in any officer’s file during the initial conduct of the annual review.  The fact that neither the Mandatory Selection Board process nor the standby board process selected him for promotion to COL was directly linked to the fact the ABCMR’s correction to his DOR did not change that fact that his officer evaluation reports predominantly indicated success at the rank of major and so did not enable his file to be competitive with that of others who at the time of each selection board had multiple LTC assignments and evaluations as LTCs on file.

5.  The applicant provides a notification of promotion status memorandum, dated 17 November 2005; a notification of the convening of the Department of the Army Reserve Components Selection Board (RSCB) on 13 July 2004; the ABCMR’s Record of Proceedings, dated 21 June 2005; an OTJAG memorandum, dated     5 February 1998, subject:  Legal Opinion Regarding National Guard Bureau  Tour Advisory Review Panels; NGB Special Orders Number 305 AR, dated       24 October 2005; a Texas Military Forces, Army National Guard memorandum, dated 17 October 2005; Texas Military Forces, Army National Guard Orders  169-1003, dated 17 June 2004 and Orders 279-1000, dated 6 October 2005;  and a letter, undated but apparently part of his request with his original ABCMR application, to the Army Review Boards Agency Support Division.

CONSIDERATION OF EVIDENCE:

1.  After having had prior commissioned service in the Regular Army and the      U. S. Army Reserve, the applicant accepted a commission in the ARNG on        26 February 1974.  He was promoted to major on 22 July 1992.  He apparently entered active duty as a major in an AGR status under Title 32 on 21 May 1995 and under Title 10 on 4 March 1996.

2.  The applicant was assigned as an Army National Guard Plans, Policy, and Training (ARNG PPT) Coordinator at Fifth U. S. Army Headquarters effective      1 July 1998.  A TDA (Table of Distribution and Allowances), effective 1 October 1999, showed the applicant was assigned in the position of the ARNG PPT and that the position was coded for fill by an LTC, O-5.

3.  The applicant’s records were considered by the 1998 RCSB for promotion to LTC.  The President approved the results of the 1998 RCSB on 24 February 1999.  By memorandum dated 25 March 1999, the Office of Promotions, Reserve Components, U. S. Total Army Personnel Command notified him that he was 

recommended for promotion to LTC.  The memorandum stated that his effective date of promotion would be either:  “a.  Date after A above” (which showed the entry “A – 22 July 1999”); or “b.  Date Federal Recognition is extended in the higher grade”; or c.  Date following the date Federal Recognition is terminated in current Reserve grade.”

4.  Texas Military Forces, Joint Forces Headquarters, Adjutant Generals Department Orders 169-1003, dated 17 June 2004, promoted the applicant to LTC effective 17 June 2004 with a DOR of 22 July 1992 (apparently an error, as 22 July 1992 was his DOR to major).

5.  NGB Special Orders 158 AR, dated 25 June 2004, awarded the applicant Federal Recognition in the grade of LTC with an effective date of 25 June 2004.

6.  On 4 August 2004, the applicant applied to the ABCMR, in part, to change his Federal Recognition date to LTC to 22 July 1999.  He stated that on 25 March 1999 the U. S Total Army Personnel Command notified him that as a result of a Department of the Army mandatory promotion board he was eligible for promotion to LTC as of 22 July 1999.  He stated, “Eventually my promotion and federal recognition was completed with a promotion eligibility date of 10 August 1998 and an effective date of 25 June 2004.  This delay constitutes an injustice because I served in a Lieutenant Colonel position will (sic) all associated responsibilities and obligation (sic) as a Major despite having been selected and identified for immediate promotion by a Congressionally mandated promotion board.”

7.  On 21 June 2005, the ABCMR noted that there was no evidence to show    the applicant was serving in an authorized LTC position on 22 July 1999 but that the 1 October 1999 TDA showed he was in an authorized LTC position as of       1 October 1999.  The ABCMR recommended the applicant’s DOR to LTC and the effective date of his Federal Recognition to LTC be adjusted to 1 October 1999.  The State amended its promotion orders in an amendment dated              6 October 2005.  NGB amended its Federal Recognition order in an amendment dated 24 October 2005.

8.  On 31 May 2006, the applicant was released from active duty.  On 1 June 2006, he was separated from the ARNG and transferred to the Retired Reserve.

9.  The applicant provided an OTJAG memorandum, dated 5 February 1998, subject:  Legal Opinion Regarding National Guard Bureau Tour Advisory Review Panels.  This legal opinion was provided by OTJAG in response to a request from the Office of the Deputy Chief of Staff for Personnel regarding the use of 

TARPs to assign Title 10 ARNG AGR officers.  In paragraphs 2a through 2c, OTJAG opined that NGB’s use of a TARP to assign a Title 10 ARNG AGR officer to a position requiring the next higher grade, even if that reassignment results in the promotion of the officer if that officer is otherwise qualified, was not legally objectionable.  OTJAG noted that the TARP functions as an advisory tool for the CNGB, and the DARNG when considering officers for promotion potential, tour continuation, and reassignment actions.  For example, a TARP convened to consider officers to occupy actual or projected colonel vacancies will examine the files of all Title 10 ARNG AGR LTCs with 3 years time in grade (in accordance with Title 10, U. S. Code, section 14303(b)(1)) and the files of officers in an LTC promotable status based upon prior selection by a mandatory Department of the Army promotion selection board.  The CNGB and DARNG are not bound by a TARP’s recommendations, even after signature by the DARNG.  OTJAG noted that the CNGB/DARNG appear to exclusively control the assignment of officers in the grade and rank of LTC.

10.  OTJAG noted, in paragraph 2d, that once the CNGB/DARNG determines that an officer should be assigned to a position requiring a higher grade, the NGB notifies the relevant State of the officer’s opportunity for promotion and advises that it will receive the appropriate allocation to allow the officer to be promoted.  Notwithstanding an ARNG officer’s participation in the Title 10 AGR program, the officer is promoted by his respective State.  If a State determines the officer should be promoted, the relevant promotion/Federal recognition process is conducted.  A State is not required to promote an officer.  

11.  OTJAG noted, in paragraph 3, that a TARP provides non-binding recommendations to the CNGB and DARNG regarding the assignment of officers and, therefore, functions solely as an advisory board.  The practical effect of placement/assignment to a higher position is merely the opportunity for promotion, not selection for promotion.

12.  National Guard Regulation 600-100 prescribes policies and procedures governing, in part, the appointment, Federal Recognition, and separation of commissioned officers of the ARNG.  Chapter 8 states the promotion of officers in the ARNG is a function of the State.  A commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  

13.  National Guard Regulation 600-100, paragraph 8-6 states wearing of insignia of the higher grade is not authorized until Federal Recognition has been extended by the CNGB.  Paragraph 8-15 states an ARNG commissioned officer, not on active duty, who is selected for promotion as a Reserve commissioned 

officer of the Army resulting from mandatory consideration may be extended Federal Recognition in the higher grade subject to several conditions, including that the officer has reached promotion eligibility date and that the officer is promoted in State status to fill an appropriate position vacancy in the higher grade.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant essentially requested that his records be corrected to show that the NGB TARP recommended him for assignment and promotion to COL during FY04, that the TXARNG promoted him to COL in the TXARNG effective              1 October 2003 and the Senate confirmed his promotion, that he was extended Federal Recognition in the rank of COL effective 1 October 2003, and that he receive all benefits that would normally flow from such corrections.

2.  It is acknowledged that the applicant was selected for promotion to LTC by the 1998 RCSB.  The promotion notification memorandum, dated 25 March 1999, informed the applicant that he was recommended for promotion to LTC and stated his effective date of promotion would be either 22 July 1999, the date Federal Recognition was extended in the higher grade, or the date following the date Federal Recognition was terminated in current Reserve grade.

3.  In his 4 August 2004 application to the ABCMR the applicant in effect acknowledged that he received the 25 March 1999 promotion notification memorandum.  The State did not promote him to LTC until 17 June 2004, when  it published promotion orders; and he was not awarded Federal Recognition as an LTC until 25 June 2004, when NGB published Federal Recognition orders.

4.  The applicant has provided no evidence with his current application, nor did he with his original application, to show why the State and NGB took so long to publish promotion/Federal Recognition orders.  Nor has he provided evidence to show what steps he took between March 1999 and August 2004 to work with the State/NGB to ensure his promotion/Federal Recognition orders were published in a timely manner.

5.  The applicant may have taken the steps that a reasonably prudent officer would have taken to ensure his promotion/Federal Recognition orders were published in a timely manner.  However, the fact remains that the adjustment of his LTC DOR to 1 October 1999 did not occur until June 2005, too late for the NGB TARP to have recommended him for assignment and promotion to COL during FY04.

6.  The applicant contended that based on NGB’s annual review of Title 10 AGR officers, the CNGB and DARNG will work in conjunction with each officer’s State Adjutant General to first assign the officers to a position authorized the next higher grade and then take action to promote that officer.  He based this contention on OTJAG’s memorandum, dated 5 February 1998, subject:  Legal Opinion Regarding National Guard Bureau Tour Advisory Review Panels.

7.  However, OTJAG’s memorandum did not state that the CNGB and DARNG will work in conjunction with each officer’s State Adjutant General to first assign the officers to a position authorized the next higher grade and then take action to promote that officer.

8.  The OTJAG memorandum was quite clear that once the CNGB/DARNG determines that an officer should be assigned to a position requiring a higher grade, the NGB merely notifies the relevant State of the officer’s opportunity for promotion.  Only if a State determines the officer should be promoted will the relevant promotion/Federal recognition process be conducted.  A State is not required to promote an officer.  

9.  In addition, the OTJAG memorandum opined that the CNGB and DARNG are not bound by a TARP’s recommendations, even after signature by the DARNG.

10.  The applicant’s request requires that three speculations be made.  One,   that he would have been recommended for assignment to a COL position by    the TARP.  Two, that the CNGB and DARNG would have accepted the TARP’s recommendations.  And three, that the State would have taken action to promote him at that time.

11.  To presume that had the initial error not occurred the applicant would have been promoted to COL in the manner he requests is purely speculative.  Regrettably, such speculation is insufficient to warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x__  __x____  __x___  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.




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          CHAIRPERSON




INDEX

CASE ID
AR20070001463
SUFFIX

RECON

DATE BOARDED
20071101
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
131.00
2.

3.

4.

5.

6.