RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 March 2008
	DOCKET NUMBER:  AR20070013672 


	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

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. William D. Powers

Member

Mr. Jerome L. Pionk

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, reconsideration of his request for promotion to lieutenant colonel in the Active Guard Reserve (AGR), with a promotion effective date and date of rank of 1 July 2004.

2.  The applicant defers statements to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, promotion of the applicant to lieutenant colonel in the AGR effective 1 July 2004.

2.  Counsel states that this request is based upon evidence and argument not previously considered by the Board.  He also states, in effect, that the applicant's case was considered by the Board without receiving a rebuttal from the applicant or counsel to the adverse and erroneous advisory opinion provided by the National Guard Bureau (NGB).  The case was acted on without such notice and acted upon despite the formal request for abeyance.  Counsel also states, in effect, that the applicant was selected for promotion to lieutenant colonel by the DA Selection Board in September 2003, with eligibility for promotion effective 10 June 2004.  On 1 July 2004, the applicant was officially assigned as the Branch Chief of the Real Estate Division of the NGB, a position coded for fill at the lieutenant colonel level.  Though the applicant's performance in this Branch Chief position was deemed "exceptional" by his senior rater, the applicant was not selected for promotion by the 2004 National Guard (NG) Career Field Review Board (CFRB).  Notwithstanding the applicant's brilliant performance in a high profile lieutenant colonel position, and notwithstanding his 2003 DA selection for promotion to lieutenant colonel, the 2005 NG CFRB failed to recommend him for promotion to lieutenant colonel.

3.  Counsel further states that notwithstanding notable performance in his third successive and successful lieutenant colonel position and in spite of his selection by the DA in 2003 for promotion to lieutenant colonel, the NG CFRB again failed to select the applicant for promotion to lieutenant colonel in both 2006 and 2007. The NGB promotion system gives less than little deference to an officer's selection by the DA for promotion to lieutenant colonel.  It gives such selection no regard whatsoever.  Within the Army National Guard (ARNG), a local selection board, the CFR Panel (CFRP), meets annually to review packets of all majors for promotion that meet time in grade requirements.  All officers meeting the minimum time in grade requirements are considered and no particular consideration is given to officers who have been selected by DA promotion
boards.  The rating or status given an officer during prior CFRP annual reviews is likewise given no consideration.  All officers meeting minimum time in grade requirements start from "scratch" during each year's CFRP annual review.  There are no written policies or regulations that mandate how the CFRP is to consider the officer's files who are eligible for promotion, and there are no published guidelines regarding the criteria the Board is to consider or considers important.  As a result of this arbitrary and subjective promotion scheme, the applicant rated high enough on one year's CFRP to be considered for promotion and then rated poorly in a succeeding board.  The applicant's former supervisor regards the CFRP process "patently unfair" and "legally flawed."  The unfairness inherent to the CFRP selection process has clearly manifested itself in this case.  

4.  Counsel also states that the NGB's failure to promote the applicant in this case is contrary to Federal law.  Title 10, United States Code (USC), section, 14311, is the federal law that governs the amount of time an officer's promotion may be delayed after he or she is selected for promotion by the DA.  Paragraph (d) of section 14311, requires, in pertinent part, that "except for court action, a promotion may not be delayed more than 18 months after the date on which the officer would otherwise have been promoted."  Paragraph (e) of section 14311 states, in pertinent part, that under regulations prescribed by the Secretary of Defense, the promotion of a Reserve officer on the Reserve Active Status List (RASL) who is serving on active duty, or who is on full-time NG duty for administration of the Reserve or the NG, to a grade to which strength limitations of section 12011 of this title apply shall by delayed if necessary to ensure compliance with those strength limitations.  The delay shall expire when the Secretary determines that the delay is no longer required to ensure such compliance.  

5.  Paragraph (e) of section 14311 does not provide the NGB authority to indefinitely delay an officer's promotion, nor does this section authorize a delay beyond the 18 months limitation under paragraph (d).  

6.  Paragraph 8-18 of National Guard Regulation (NGR) 600-100, states that an officer serving on an AGR tour, Title 10 or Title 32, who is selected for promotion by a mandatory selection board but cannot be promoted because of strength in grade limitations or because he or she is not in a position requiring the higher grade is not required to decline promotion.  The promotion of an AGR officer is delayed and he or she will remain on the promotion list until:  (1) that officer is removed from the promotion list in accordance with Army Regulation 135-155, Chapter 3, or (2) that officer is promoted to the higher grade following grade authorization availability or reassignment to an AGR position calling for the

higher grade, or (3) that officer is promoted to higher grade following release from the AGR program.  

7.  Counsel further states that the applicant was selected for promotion in September 2003, with a promotion effective date of 10 June 2004.  The applicant was assigned to an AGR position calling for the next higher grade (lieutenant colonel) effective 1 July 2004 and he has served in a lieutenant colonel position since that date.  Pursuant to both federal law and NGR 600-100, the applicant should have been promoted to lieutenant colonel on 1 July 2004.  Both federal law (section 14311, paragraph (d)) and NGR 600-100, provide that, under the facts of this case, the applicant should have been promoted 37 months ago after his DA selection for lieutenant colonel effective 10 June 2004 and his appointment into a lieutenant colonel position on 1 July 2004.

8.  Counsel also states that the NGB incorrectly paraphrased NGR 600-100 in such a way that completely obscured the regulatory requirement to promote an officer who is selected for promotion once the officer is reassigned to an AGR position calling for the next higher grade.  Unfortunately, because the applicant's case was decided before applicant or counsel could submit an adequate rebuttal to the NGB's erroneous advisory opinion, the Board was unaware that the advisory opinion contained erroneous paraphrasing and analysis of the regulatory scheme and incorrect facts regarding the applicant's past CFRP rating.  Even more unfortunate is that the Board's initial decision to deny applicant relief in this case was in large part based on the erroneous information provided to it by the NGB through its advisory opinion.

9.  The NGB provided the Board with several other erroneous facts.  The NGB stated that in Fiscal Year 2006, the applicant placed in the top five during the CFRP annual review.  There is no such ranking for any officer, as the NGB ranks perspective officers only in "thirds."  The NGB also, in effect, gave an incorrect date of assignment to the AGR program for applicant.  Admittedly, these additional erroneous facts do not, in and of themselves, demonstrate malevolence on behalf of the NGB.  But, when they are viewed alongside the other errors contained in the erroneous opinion, one begins to see the truly callous manner in which the NGB has treated the applicant's case over the last three years.  Given the numerous prejudicial errors contained in the NGB advisory opinion, and considering the weight the Board gave the NGB opinion in its initial decision, applicant respectfully requests that the Board now dismiss the NGB opinion in its entirety and grant applicant's petition for relief.

10.  Counsel also states that it is improper for the NGB system to wholly ignore the DA promotion board results and force AGR officer to compete for promotion
annually in a local board where evaluations are based solely on a subjective review of records and the board members' personal knowledge of the officers competing for promotion.  Furthermore, it is quite illegal for the NG to use the CFRP process to circumvent the federal requirement prohibition on delaying an officer's promotion beyond 18 months and to circumvent the NGB's own regulation that requires an officer to be promoted if he or she is selected for promotion and is subsequently selected to fill a lieutenant colonel position.

11.  Counsel concludes that the inadequacy and unfairness of such a promotion system has clearly manifested itself in this case where the applicant was selected for promotion by the DA effective 10 June 2004, reassigned to a lieutenant colonel position on 1 July 2004, and the NGB delayed his promotion for 37 months under the guise of a grade authorization availability.  For these reasons, applicant respectfully requests correction of his military records to show that he was promoted on active duty to lieutenant colonel, with a date of rank and effective date of 1 July 2004.

12.  Counsel provides copies of the applicant's NGB AGR assignment orders; his Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty memorandum; his officer evaluation reports ending 4 May 2004, 3 May 2005, 6 November 2005, and 21 July 2007; letters of support from the applicant's former supervisor and a fellow officer; the results of the 2003, 2004, 2005, 2006, and 2007 AGR Officer CFRBs; his record brief; the NGB Advisory Opinion; counsel's Request for abeyance, the Army Board for Correction of Military Records' (ABCMR) Record of Board Proceedings; Title 10, USC, section 14311; NGR 600-100, paragraph 8-18; and a "Just the Facts" Newsletter, in support of the applicant's request for reconsideration.

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 ABCMR in Docket Number AR20070001785, on 24 July 2007.

2.  While serving as a member of the Alaska ARNG, the applicant was promoted to major effective 11 June 1997.

3.  The applicant was ordered to active duty in an AGR status in the rank of major effective 22 May 2000, for a 3-year active duty commitment.  

4.  The applicant was considered and selected for promotion to lieutenant colonel by the 2003 Reserve Components Selection Board (RCSB), which convened on
3 September and recessed on 19 September 2003.  The board results were approved on 26 January 2004.  

5.  The Office of Promotions, Reserve Components, St. Louis, Missouri, issued the NGB an Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty memorandum, dated 19 February 2004, indicating the applicant's selection for promotion to lieutenant colonel by a board adjourning on 19 September 2003.  The memorandum also stated that the effective date of promotion would be either of the following dates:  a. 10 June 2004 (his promotion eligibility date), or b. the date Federal recognition was extended in the higher grade; or c. the date following the date Federal recognition was terminated in his current Reserve grade.

6.  Orders Number 190-2, dated 8 July 2004, show the applicant was assigned to an ARNG AGR lieutenant colonel position effective 1 July 2004.

7.  The applicant was considered for promotion to lieutenant colonel in the ARNG by the Fiscal Years 2003, 2004, 2005, 2006, and 2007 ARNG AGR Officer CFRBs.  He was not selected by any of the boards for promotion to lieutenant colonel.

8.  On 24 July 2007, the ABCMR addressed the applicant's and counsel's request for promotion to lieutenant colonel effective 1 July 2004.  On 24 May 2007, counsel requested the case be held in abeyance to allow time to formulate an appropriate response to the NGB advisory opinion.  The case was forwarded for Board action on 17 July 2007, after no response had been received.  The case was denied by the Board on 24 July 2007.

9.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve and ARNG officers.  This regulation specifies that a mandatory selection board will convene each year to consider Reserve and AGR officers on the RASL for promotion to captain through lieutenant colonel.  Promotion authorities will submit promotion memorandums for ARNG to the Chief, NGB, Arlington, Virginia, for appropriate action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to promotion in the AGR to lieutenant colonel effective 1 July 2004.  He has not shown that the 2003 through 2007 AGR CFRBs results and its process were unfair and resulted in his non-promotion to lieutenant colonel.  

2.  The contested NGB advisory opinion shows the applicant was advised by the NGB Inspector General's office on 23 January 2007, that it had been determined that his issue that the CFR process for promotion was unfair, was unfounded.  A copy of this letter is also contained in the previous Record of Proceedings.

3.  The applicant and counsel contend that the applicant should have been promoted to lieutenant colonel effective 1 July 2004, based on his selection by the 2003 RCSB and assignment to an higher graded position.  However, in the applicant's case, he was selected for promotion to lieutenant colonel by the 2003 RCSB, with a PED of 10 June 2004.  He was assigned to a lieutenant colonel position effective 1 July 2004.  His promotion to lieutenant colonel was involuntarily delayed in accordance with Title 10, USC, section 14311(e), because of limitation on officer strength in grade or duties to which assigned.  He was considered for promotion to the grade of lieutenant colonel by the 2003 through 2007 AGR CFRBs.  He was not selected by any of the boards to be promoted.   

4.  The applicant and counsel have not shown that the CFRB process in Fiscal Year 2003 through 2007 was unfair and caused him not to be promoted to lieutenant colonel.

5.  In accordance with Title 10, USC, section 14311 (e)(1), there is no maximum length of delay in promotion.  The delay shall expire when the Secretary determines that the delay is no longer required to ensure compliance with strength limitations.  Section 14311 (e)(4) specifies that if an officer whose promotion is delayed under this paragraph completes the period of active duty or full-time ARNG duty that the officer is required by law or regulation to perform as a member of a Reserve Component, the officer may request release from active duty or full-time ARNG duty.  If the request is granted, the officer's promotion shall be effective upon the officer's release from such duty.  Therefore, the applicant's involuntary delay in promotion is for an indefinite period until he is either promoted or is granted a release from active duty or full-time ARNG.  Then he can be promoted to lieutenant colonel.

6.  Therefore, without evidence to show otherwise, it is concluded that the contentions by the applicant and counsel are without merit.  There are no indications that the applicant’s non-promotion to lieutenant colonel thus far has been unjust or inequitable.  There is no evidence of record that shows that his non-promotion is contrary to law.  


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 and counsel have failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____A___  ___WDP_  __JP____  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 AR20070001785, dated 24 July 2007.




______James E. Anderholm____
          CHAIRPERSON




INDEX

CASE ID
AR20070013672
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080304
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
ARNG
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.