IN THE CASE OF:	  

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110011334 


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:

The applicant defers his request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* voiding the applicant's status as a member of the Inactive National Guard (ING) from 2 April 1997 to 13 June 2003
* placing him in the U.S. Army Reserve (USAR) Individual Ready Reserve (IRR) from 2 April 1997 to 13 June 2003
* consideration by a special selection board (SSB) for promotion to major (MAJ) while serving in the IRR

2.  Counsel states:

* the applicant served in the Louisiana Army National Guard (LAARNG) from 2 April 1993 to 2 April 1997, during which time he was promoted to captain (CPT) on 7 August 1994
* he was transferred to the ING on 2 April 1997 and to the IRR on 15 June 2003
* he rejoined the LAARNG on 15 June 2004
* he continued his service in the ARNG and he was ultimately promoted to MAJ in the USAR on 15 August 2008
* 
he was improperly placed in the ING in 1997 and when the Army noticed the error, he was transferred the IRR
* only enlisted Soldiers are eligible for a transfer to the ING
* while a member of the IRR, he would have been eligible for promotion consideration between 1998 and 2001

3.  Counsel provides:

* appointment memorandum
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* USAR Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* NGB Form 23A (ARNG Current Annual Statement)
* U.S. Marine Corps (USMC) DD Form 214 (Certificate of Release or Discharge from Active Duty)
* U.S. Army Human Resources Command Orders B-10-806829 (promotion to MAJ)

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 Army Board for Correction of Military Records (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.  Having prior service in the USMC from 24 October 1986 to 1 December 1991, the applicant was appointed as a first lieutenant (1LT) in the LAARNG and executed the oaths of office on 2 April 1993.

3.  He completed the Reserve Component Engineer Officer Advanced Course from 31 January to 6 May 1994.  He was assigned to the 528th Engineer Battalion, Monroe, LA.  He was promoted to CPT on 7 August 1994.

4.  On 19 May 1997, the LAARNG published Orders 139-026 transferring him from the Battalion Headquarters S-2, 528th Engineer Battalion, to the Louisiana ING, 528th Engineer Battalion, in accordance with paragraph 4-6 of National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions).

5.  On 20 June 1997, NGB published Special Orders Number 120 AR noting his transfer to the ING effective 19 May 1997.

6.  On 24 August 1999, the LAARNG published Orders 236-060 relieving him from the Louisiana ING and transferring him to Headquarters and Headquarters Company, 528th Engineer Battalion, effective 11 September 1999, for muster (an assembling of troops or persons for formal inspection or other purposes) for one unit training assembly.  These orders specify that he will revert to ING status the day immediately following muster day.

7.  On 23 June 2003, the LAARNG published Orders 174-002 transferring him from the Louisiana ING to the Battalion Command Section, 528th Engineer Battalion, effective 14 June 2003 in accordance with paragraph 4-6 of National Guard Regulation 600-100 to facilitate his transfer to the USAR Control Group (IRR).

8.  On 23 June 2003, the LAARNG also published Orders 174-003 honorably separating him from the ARNG effective 15 June 2003 and transferring him to the USAR Control Group (IRR) in accordance with paragraph 4-2d of National Guard Regulation 614-1 (Inactive Army National Guard) by reason of failure to muster.

9.  He was reappointed in the LAARNG in the rank of CPT and executed the oaths of office on 13 August 2004.  Accordingly, NGB published Special Orders Number 213 AR extending him Federal recognition upon his transfer from the ING to the USAR effective that date.

10.  He served in a variety of assignments, including periods of mobilization on active duty, and he was separated from the ARNG and transferred to a troop program unit of the USAR on 13 July 2008.

11.  On 30 October 2008, the U.S. Army Human Resources Command published orders promoting him to MAJ with an effective date and date of rank of 15 August 2008.  He had been considered by an SSB under the 2006-year criteria that adjourned on 28 September 2007 and selected him for promotion.

12.  On 22 April 2010, the ABCMR denied his June 2009 petition to correct his date of rank to MAJ from 15 August 2008 to 30 August 2006.

13.  An advisory opinion was obtained from NGB, dated 20 March 2012, in the processing of this case.  NGB recommended disapproval of the applicant's request and stated the applicant has not met his burden of proof to establish the existence of an error or injustice and the State concurs with the recommendation to disapprove his request.

	a.  The applicant alleges that he was erroneously transferred to the ING in 1997 versus being transferred to the IRR as he claims he should have been.  He indicates this error deprived him of the opportunity to be considered for promotion by a subsequent mandatory promotion board.  However, he provides no evidence to support these allegations.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Thus, having provided no evidence to support his claim of error or injustice, we must presume the LAARNG acted appropriately in his case.

	b.  Furthermore, even if he were to substantiate his allegations of error, any claim that he would have been promoted but for the error is speculative.  Additionally, had he been transferred to the IRR vice the ING and promoted while in the IRR, there is no guarantee the LAARNG would have accepted him for reappointment in the ARNG at the higher grade.  It is impossible at this late date, nearly 15 years after the alleged improper transfer to the ING, to reconstruct the circumstances under which he was so transferred.  In light of the presumption of regularity of administrative actions – and in light of the applicant's failure to rebut this presumption – relief should be denied.

	c.  The applicant references National Guard Regulation 614-1, dated 18 March 2010, which he indicates states, "only enlisted Soldiers are eligible for transfer to the ING; commissioned and warrant officers are not."  However, the version of National Guard Regulation 614-1 that is applicable in this instance is dated November 1986.  The guidance addressing individuals who are not eligible for transfer to the ING is stated in paragraph 4-3(a), "officers who are not eligible for transfer to the ING:  second lieutenants…"

	d.  Evidence has not been provided by the LAARNG or the applicant as to the reason for the applicant's transfer to the ING, nor has evidence been provided showing the Soldier requested to be transferred to the IRR.

	e.  The applicant indicates the error in transferring him to the ING was discovered and as a result he was transferred to the IRR in 2003.  An email from the LAARNG, dated 18 August 2011, indicates he returned to an active status for 1 day to facilitate a transfer to the USAR Control Group (IRR) on 14 June 2003 in accordance with National Guard Regulation 614-1, paragraph 2-3(c).  Per the LAARNG email, its operations log indicates the transfer was initiated due the Soldier's failure to muster.

15.  On 24 April 2012, the applicant's counsel responded to the advisory opinion and voiced his disagreement.  He stated:

* the applicant requested to be placed in the IRR, not the ING
* none of the reasons stated in the National Guard Regulation regarding a transfer to the ING applies in his case (residence, incompatibility, overseas employment, missionary obligation)
* the advisory opinion relies on assumptions, not facts
* the applicant requested to transfer to the IRR because he had to travel for his employer at the time, but he knew it was unlikely he would return to Louisiana

16.  National Guard Regulation 600-100 provides procedures for processing all applications for Federal recognition and applies to the ARNG.  Paragraph 4-6 (Transfer of Commissioned Officers) states the reassignment of an ARNG commissioned officer not involving a change in grade, initial specialty, or branch may be made subject to the following conditions:

* there must be an authorized position vacancy in the same or higher grade unless otherwise authorized by this regulation
* the officer reassigned must meet all requirements of the new position (with some exceptions)

17.  National Guard Regulation 614-1, currently in effect, dated March 2010, prescribes policies and procedures for enlisting Soldiers in the ING, effective management of Soldiers in the ING, and transfer of Soldiers into and out of the ING.  The previous regulation was dated 14 November 1986.

	a.  Paragraph 2-3c of the version in effect in 1986 states that commanders will review the service records of those Soldiers who do not respond to a letter, who do not attend the muster, do not give reasons for non-attendance, and in the case of undeliverable letters.  If it is determined that Soldiers will not be available for mobilization, they will be considered for discharge action or transfer to the IRR.

	b.  Paragraph 2-8 of the 1986 version states active Soldiers may be transferred to the ING for various reasons, including change of residence, incompatibility with civilian employment, temporary medical disqualification, pregnancy, change to authorized strength, weight control, temporary overseas or out of state residency/employment/missionary obligations, Soldier's own request, unsatisfactory participant, and other reasons.  All Soldiers being transferred to the ING will be given a copy of the ING information sheet that explains their responsibilities while in the ING.

18.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the USAR.  This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  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, 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.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.   The minimum time-in-grade requirements for promotion from CPT to MAJ is 4 years in the lower grade and the maximum time in grade requirements is 7 years in the lower grade.

19.  Paragraph 3-19 also lists the following factors that will normally result in a material error determination; e.g., an officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses.  If eligible, this person will be considered by the next regularly scheduled selection board.  An SSB will not be used when an administrative error was immaterial, or the officer in exercising reasonable diligence could have discovered and corrected the error or omission in the official military personnel file.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a 1LT in the LAARNG on 2 April 1993 and he was promoted to CPT on 7 August 1994.  He was assigned to the 528th Engineer Battalion, Monroe, LA.

2.  He was transferred to the ING on 19 May 1997.  Among authorized reasons for transfer to the ING in accordance with National Guard Regulation 600-100 is incompatibility with civilian employment.

3.  In the absence of evidence to the contrary, particularly evidence that the applicant requested to be transferred to the IRR, his transfer to the ING must be 
presumed to have been based on incompatibility with civilian employment as he contends and as authorized by National Guard Regulation 614-1 in effect at the time.  At the time of his transfer to the ING, he had completed less than 3 years of time-in-grade as a CPT and therefore would not have qualified for consideration for promotion to MAJ at the time.  Additionally, while in the ING, he did not qualify for promotion consideration to any grade because he was not in an active status.

4.  While in the ING, he failed to muster despite the issuance of orders ordering him to do so.  His failure ultimately led to his discharge from the ARNG and transfer to the IRR on 15 June 2003.  A day earlier, he was ordered from the ING to the ARNG to facilitate his discharge.

5.  Implicit in the Army's personnel system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The applicant knew or should have known of his transfer to the ING.  His failure to exercise due diligence in managing his career does not establish an error by the Army. 

6.  In view of the foregoing evidence, the applicant is not entitled to 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 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)                                         AR20110011334



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ABCMR Record of Proceedings (cont)                                         AR20110011334



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