IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20090017834 


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 his record be corrected to show he was selected by the United States Army Reserve Command (USARC) Colonel Command Assignment Selection Board (CCASB) and received a unit position vacancy promotion to colonel (COL).  

2.  The applicant states he was selected by the CCASB but his name was removed from the selection list.  He claims his selection for command would have resulted in a unit vacancy promotion to COL, which is supported by his selection for promotion to COL by a later selection board.  

3.  The applicant provides a third-party affidavit and Congressional Record, dated 13 September 2006, in support of his application.    

4.  On 14 October 2009, during the processing of this case, the applicant submitted a rebuttal to an advisory opinion provided by the U.S. Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis).  In this rebuttal, he raised two additional issues involving Army Board for Correction of Military Records (ABCMR) corruption and promotion to COL by a Special Selection Board (SSB) in 2006.  Since the allegation concerning ABCMR corruption fails to provide an error/record to correct and the request for promotion to COL by an SSB has been considered twice and denied by the Board neither of these requests will be further addressed by the Board in this Record of Proceedings (ROP).  


5.  Subsequent to receipt of this application and during the processing of the case, the applicant died.  This case is being processed to completion and will be provided to the applicant’s estate. 

CONSIDERATION OF EVIDENCE:

1.  The record shows the applicant was considered by the USARC CCASB that convened on 22 January 2001, and his name was forwarded to The Judge Advocate General (TJAG) for approval.

2.  The TJAG did not approve the applicant for command and his name was not included on the final approved command selection list published for this board.  

3.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army Promotions, HRC-St. Louis.  This official states that by law, any JAG officer selected by a board for command must be approved by TJAG.  In this case, TJAG did not approve the applicant for command and the applicant was not included in the approved official command selection list published for the CCASB that convened on 22 January 2001.  

4.  The HRC-St. Louis opinion further indicates records confirm the Assistant Judge Advocate General (ATJAG), a major general, informed the applicant his name had been removed from the list by TJAG.  This official further stated the applicant's belief he should have been selected for a unit vacancy promotion based on his subsequent selection for promotion to COL by a regular selection board is moot.  The HRC-St. Louis advisory opinion states even had the applicant been selected and approved for command there is no guarantee he would have been recommended and subsequently promoted by a position vacancy board.  Over the past several years many officers selected to command were the only officers considered by a position vacancy board and they were not selected for promotion.  Therefore, even if the applicant were the only officer considered by the position vacancy board his promotion would not have been guaranteed.  The HRC-St. Louis advisory opinion recommends the applicant’s request for selection and promotion be disapproved.  

5.  On 17 June 2010, the applicant provided a self-authored memorandum with 11 enclosures which included a rebuttal to the HRC-St. Louis advisory opinion.  He alleges the position taken in the advisory opinion that even had he been selected for a COL position by the CCASB it is no guarantee he would have been promoted to COL is not a valid legal position and is belied by the fact the individual who signed the opinion has been hostile toward him for many years and is hardly impartial; and that he lied about promotion selection for JAG officers on a position vacancy board.
6.  The applicant provides a third-party statement from a personnel management officer who worked for the JAG career branch at HRC-St. Louis during the CCASB selection process in question.  She states the applicant was selected for a command position by the board but he was later removed.  She states she is not aware of how this was done or what reasons were used.  She finally states it is her belief the applicant was treated unfairly and recommends that he be promoted to COL.  The applicant also provides a Congressional Record-Senate, dated 21 September 2006, which shows he was nominated for promotion to COL and his name was submitted for Senate confirmation.  

7.  Title 10 of the United States Code, Section 806, Article 7, contains guidance on the assignment of JAG and legal officers.  It states the assignment for duty of JAGs shall be made upon the recommendation of TJAG of the Armed Force of which they are a member.  

8.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 2, Section VII provides guidance on the JAG command selection process.  Paragraph 2-36 of the same regulation provides guidance concerning CCASB selections and approval.  It states JAG officers require the approval of ATJAG to be selected for command and added to the approved CCASB selection list. 
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention his record should be corrected to show he was selected for command by the USARC CCASB and received a unit position vacancy promotion to COL has been carefully considered.  However, the evidence is not sufficient to support this claim.  

2.  By law and regulation, assignment of JAG officers is within the purview and subject to approval of TJAG.  TJAG approval is required for a JAG officer to be included on the final approved CCASB COL selection list.  

3.  The evidence of record confirms TJAG, acting within his legal and regulatory discretionary authority, disapproved the applicant’s selection for COL command by the CCASB.  Further, given he was never officially approved for COL command, he was not eligible for promotion to COL by a position vacancy board.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.  



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.




      _______ _  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)                                         AR20090017834



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ABCMR Record of Proceedings (cont)                                         AR20090017834


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