BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110003976 


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 promotion to colonel (COL) through his Member of Congress.

2.  The applicant states he was not able to be promoted to COL because he became 100-percent service-connected disabled.  He feels if he had been given an opportunity to continue his service, he would have been promoted to COL or even to general officer.  He was transferred to the U.S. Army (USAR) Control Group (Reinforcement) in September 1991 due to his disability which kept him from serving his country and eliminated any further promotion.

3.  The applicant provides:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* two letters from the Arkansas Army National Guard (ARNG)
* 2003 retirement orders
* 1991 transfer to the USAR Control Group (Reinforcement) orders
* NGB Special Orders Number 168 AR (transfer to USAR)
* Combat-Related Special Compensation (CRSC) decision
* 1994 transfer to the Retired Reserve orders
* certificates of retirement
* multiple certificates of Bible training, completion, and transcripts


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records are not available to the Board for review.  However, he provides sufficient documents for the Board to conduct a fair and impartial review of this case.

3.  The applicant's NGB Form 22 shows he was born on 12 August 1943.  He entered the Mississippi ARNG (MSARNG) on 19 December 1977 in the Transportation Corps.  He was promoted to lieutenant colonel (LTC) on 8 September 1989.

4.  On 20 September 1991, the MSARNG published Orders 181-032 honorably releasing him from the ARNG and transferring him to the USAR Control Group (Reinforcement) in accordance with paragraph 5a(15)(a) (overstrength) of National Guard Regulation 635-100 (Personnel Separations – Termination of Appointment and Withdrawal of Federal Recognition).

5.  On 21 April 1994, the U.S. Army Reserve Personnel Center, St. Louis, MO, published Orders C-04-417151 honorably releasing him from the USAR Control Group (Reinforcement) and transferring him to the Retired Reserve in the rank of LTC effective 21 April 1994.

6.  On 8 January 1999, the Department of Veterans Affairs (VA) notified him that he could apply for a special automobile license because the VA considered him totally and permanently disabled because of his service-connected disability evaluated at 100 percent.

7.  On 7 May 2003, the U.S. Army Reserve Personnel Command, St. Louis, MO, published Orders P05-384002 placing him on the Retired List in the rank of LTC effective 12 August 2003, his 60th birthday.

8.  On 23 May 2008, the U.S. Army Human Resources Command, Alexandria, VA, awarded him CRSC for a spinal disc condition effective January 2004.

9.  He submits multiple certificates of Bible training, completion, and transcript, completed or received between 2003 and 2010.

10.  National Guard Regulation 635-100 prescribes the policy, criteria, and procedures governing the separation of commissioned officers of the ARNG.  Paragraph 5 provides the criteria for termination of State appointment.  It lists various reasons for termination, such as attainment of maximum age, completion of maximum service, resignation, etc.  Paragraph 5a(15)(a) pertains to termination of appointment for being overstrength.  Paragraph 5a(14) provides for termination when an officer becomes medically disqualified for further military service.

11.  National Guard Regulation 600-100 provides procedures for processing applications for Federal recognition and related personnel actions.  Chapter 8 provides for promotion of officers other than general officers.

	a.  Paragraph 8-1 states promotion in the ARNG is a function of the State.  As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must have satisfied the requirement for promotion.

	b.  Paragraph 8-7 states to be considered for Federal recognition and subsequent Reserve of the Army promotion following State promotion to fill a unit vacancy, an officer must be in an active status, be medically fit, meet the height and weight standards, have completed the minimum years of promotion service, have completed the minimum civilian and military education, and have passed the physical fitness test.

	c.  Paragraph 8-8 states a commissioned officer must complete the minimum years of service prior to being considered for promotion and Federal recognition in the higher grade.  The minimum number of years in the lower grade for promotion from LTC to COL is 3 years.

	d.  Paragraph 8-14 states ARNG officers will be mandatorily considered for promotion as a Reserve commissioned officer of the Army when they meet minimum promotion service requirements prescribed for the zone of consideration.  The provisions of Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers Other Than General Officers) apply.

12.  Army Regulation 135-155, in effect at the time, prescribed the policies and procedures for promotion of Reserve commissioned officers.

	a.  Commissioned officers were recommended for promotion by their commanders and were selected by centralized (service-wide) promotion boards which made promotion determinations based upon the officers' promotion records.  There are basically three promotion opportunities:  below the zone, in the zone, and above the zone.  Most promotions occur in the zone of consideration.  Those not selected in the zone have one more chance a year later – above the zone [the selection rate for above the zone is extremely small – approximately around 3 percent].  The two most significant factors in an officer's promotion records are inarguably their fitness report(s) and level of responsibility in their current and past assignments.

	b.  Special selection boards (SSB) are convened to consider commissioned officers for promotion when Department of the Army Headquarters discovers an officer was not considered from in or above the promotion zone by a regularly-scheduled board due to an administrative error, or when the action by a board which considered an officer in or above the promotion zone was contrary to law or involved a material error, or the board which considered an officer from in or above the promotion zone did not have before it for consideration some material information.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

	c.  An officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial or the officer, exercising reasonable diligence, could have discovered and corrected the error in his/her official records.  An officer will also not be considered or reconsidered for promotion by an SSB when letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the ARNG from 19 December 1977 until 30 September 1991.  The documentation he provides shows he was transferred to the USAR Control Group (Reinforcement) for being a surplus officer, not for medical reasons.

2.  At the time of his transfer to the USAR Control Group (Reinforcement) he had completed 2 years of time in grade as an LTC.  If he had remained in the ARNG and qualified for consideration for promotion to COL, his belief that he would have been promoted to COL and higher is speculative at best.  It is well known that not everyone who is eligible for promotion during a given selection board is selected because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.

3.  Each board considers all officers eligible for promotion, but it may only select the number within established selection constraints.  The Secretary of the Army, in his memorandum of instruction to the promotion board, establishes limits on the number of officers to be selected.  The selection process is an extremely competitive process based on the "whole officer" concept.  It is an unavoidable fact that some officers considered for promotion will not be selected.  There are always more outstanding officers who are fully qualified to perform duty at the next higher grade, but who are not selected because of selection capability restrictions.

4.  In view of the facts of this case, there is an insufficient evidentiary basis to support the applicant's request for promotion to COL.

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 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)                                         AR20110003976



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ABCMR Record of Proceedings (cont)                                         AR20110003976



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