IN THE CASE OF:	

		BOARD DATE:	04 May 2010  

		DOCKET NUMBER:  AR20090013514 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his previous request to be promoted to Colonel (COL)/O-6 with associated back pay and allowances between 14 May 2004 and 31 July 2007.

2.  The applicant states he was selected by the Fiscal Year (FY) 2003 Department of the Army (DA) COL/O-6 Board in St. Louis.  He states he was eligible to be promoted then, that he was in an O-6 position.  He states he was over qualified for promotion each time, that he did nothing wrong, and he was denied promotion three years in a row when he was told he would be promoted.  He states his promotion order is a legal document and that's all he needs to get promoted.

3.  The applicant provides a copy of his 2 March 2004 promotion memorandum and a copy of his July 2007 DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 AR20070015915, on 14 August 2008.


2.  Although the applicant did not provide any new evidence or make a new argument in his current application, the Board will reconsider his request based on the fact a new advisory opinion was requested and obtained from the National Guard Bureau (NGB).

3.  The advisory opinion from the NGB, Chief, Personnel Division, undated, regarding the applicant’s current request continued to recommend the applicant not be promoted to the rank of COL.  The advisory official noted the applicant did not provide evidence that he was assigned to an O-6 position during the period in question.  The advisory official indicated the applicant did not provide any additional evidence to support his request for reconsideration.

4.  The advisory official also noted an e-mail from the Louisiana Army National Guard (LAARNG) that indicated according to their records the applicant was in an excess TDA (Table of Distribution and Allowances) position while on a Title 10 NGB tour.  Additionally, the official stated the NGB Human Capital Management Office showed the applicant was assigned to an O-5 (lieutenant colonel (LTC)) slot.

5.  Orders, dated 20 August 2001 and 6 June 2007, contained in the applicant's Official Military Personnel File (OMPF) and issued by the NGB in Arlington, VA both contain statements indicating the applicant was continued on active duty with his consent and the consent of the Governor of the State of Louisiana.  The orders also note the applicant was accounted for in a temporary additional LTC position, first with a Louisiana STARC (State Army Command) TDA and then with the Louisiana Joint Forces Headquarters.

6.  Performance evaluation reports rendered for the rating periods between March 2003 and July 2007 all show the applicant’s principal duty title as Director, Army National Guard Affairs Office.  The applicant’s raters and senior raters were all COL's with the exception of his final evaluation where his rater was a GS-14.

7.  On 3 February 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his 2 March 2010 response, he cited provisions of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) and stated he was eligible to be promoted as soon as possible.  He stated laws in this regulation were being violated by the NGB.  He maintains the LAARNG is attempting to cover their track to keep from helping to correct a grave injustice.  He states the position he “was in could have promoted me without moving me” and he was told by the NGB G-1 they were trying to get all the LTC's 


promoted who were not picked up by the promotion board first and would then promote us last.  He stated NGB needed to stop undermining the Army selection board and policies on promotions.

8.  The applicant argued the regulation provides:

   a.  An officer whose name is placed on a promotion list as a result of recommendation for promotion by a special selection board convened under this section, shall, as soon as practicable, be appointed to the next higher grade in accordance with the law and policies which would have been applicable had he been recommended for promotion by the board which should have considered or which did consider him.

   b.  An officer who is promoted to the next higher grade as the result of the recommendation of a special selection board convened under this section shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the reserve active-status list as the officer would have had if the officer had been recommended for promotion by the selection board which should have considered, or which did consider, the officer.

   c.  If the report of a special selection board convened under this section, as approved by the President, recommends for promotion to the next higher grade an officer not currently eligible for promotion or a former officer whose name was referred to it for consideration, the Secretary concerned may act under section 1552 of this title to correct the military record of the officer or former officer to correct an error or remove an injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer.

9.  The applicant also cited regulatory provisions associated with the effective date of promotion for officers selected by a mandatory promotion board and those selected by an advisory or special selection board.

10.  The applicant stated a Department of the Army Special Selection Board unanimously recommended him for a “retroactive look for the FY04 board that met in 2003, with an endorsement from the Office of the Secretary of the Army.”  He maintains his effective date of promotion should be 14 March 2004, which was the date he was confirmed.  He also states he was sent to the Human Resources Command in St. Louis "with the intent to be promoted to colonel while I was in the position" and was told he would be promoted as soon as the results 


came out.  He states he had to fight for every promotion and most of the time was over qualified for every position.  He states he stayed on active duty as an LTC promotable AGR officer for three years after he was selected for promotion and would have kept the rank of COL upon retirement.

11.  The applicant also states the slot he was in “could have been coded as a COL's billet because I was one of many Senior Army Guard Advisors that was COL or promoted to COL and sent to every Major Command to assist and advise on all ARNG matters.”  He notes “most of the other ARNG Advisors were already promoted to COL to hold the positions or promoted as soon as they were slotted in these positions.”

12.  Army Regulation 135-155, in effect at the time, stated:

	a.  To be eligible for consideration for promotion to the next higher grade, an ARNG or U.S. Army Reserve (USAR) officer must be in an active status and meet service requirements.  The normal service requirement for promotion to COL requires 5 years in the grade of LTC.  Mandatory selection boards will be convened each year to consider ARNG and USAR offices in an active status for promotion.  First consideration for promotion will occur well in advance of the date the officer will complete the service requirement.  This will allow selected officers to be promoted on their eligibility date.  (Note:  the applicant was promoted to LTC on 15 March 1999.  His normal promotion eligibility date for COL would have been 14 March 2004 based on 5 years of time in grade at the lower grade.)

	b.  Officers serving on active duty in an AGR status may be promoted to or extended Federal Recognition in a higher grade provided the duty assignment of the officer requires a higher grade than that currently held by the officer.  AGR officers who have been selected for promotion and are not assigned to a position calling for a higher grade will remain on the promotion list and serve on active duty in the AGR program until they are:

* removed from the promotion list under other provisions of the regulation
* promoted to the higher grade following reassignment to an AGR position calling for the higher grade
* promoted to the higher grade following release from active duty


DISCUSSION AND CONCLUSIONS:

1.  The applicant appears to be arguing that because he was selected for promotion by a DA mandatory selection board he should be promoted without regard to the regulatory requirement which states an AGR officer may be 
promoted “provided the duty assignment of the officer requires a higher grade than that currently held by the officer.”

2.  There is no evidence, and the applicant has not provided any, that he occupied an O-6 position on or after the date he was selected for promotion to COL.  In the absence of such evidence there is no basis to now promote the applicant.

3.  The applicant also argues that because he was selected by a special selection board he should be automatically promoted according to regulatory and statutory requirements.  However, it appears the applicant was selected by a regularly convened mandatory promotion selection board and not by a special selection board.  However, even if the applicant had been selected by a special selection board his promotion would still be dependent upon occupying a position in the higher grade at the time he would or should have been originally considered for promotion.  There is no evidence the applicant ever held an O-6 position.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070015915, dated 14 August 2008.



      _________X______________
               CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20090013514



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ABCMR Record of Proceedings (cont)                                         AR20090013514



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