IN THE CASE OF:	  

		BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20140009957 


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 reconsideration of his earlier request for correction of the applicant's military records by granting him a special selection board (SSB) or, in the alternative, changing his date of promotion to major (MAJ) to 10 September 2007.

2.  Counsel states he is providing a new argument that was not previously considered.  He states the purpose of requesting an SSB in the first place was to obtain the applicant's proper date of rank (DOR).  The Board determined the applicant should not be considered by an SSB because he was transferred to the Inactive National Guard (ING) vice the U.S. Army Reserve (USAR) Individual Ready Reserve (IRR) in 1997.  However, the Board did not apply all of the applicable rules in his case.  Counsel notes the following pertinent dates:

* 7 August 1994 – DOR to captain (CPT)
* 9 May 1997 – transfer to the ING
* 23 June 2003 – transfer to the IRR
* 13 August 2004 – appointment to the Louisiana Army National Guard (LAARNG)
* 14 March 2006 – 2006 Major Selection Board
* 9 February 2007 – mobilization in support of Operation Enduring Freedom
* 12 March 2007 – maximum time in grade (TIG) as a MAJ
* 28 September 2007 – SSB for the 2006 Major Selection Board
* 20 March 2008 – notification memorandum for SSB Selection to MAJ
* 5 April 2008 – demobilization

3.  Counsel also states:

	a.  ARNG officers recommended for promotion to the grades of CPT through lieutenant colonel (LTC) mobilized under the provisions of Title 10, U.S. Code, sections 12301(a), 12302, and 12304 and who are on an approved mandatory selection board promotion list who reach their maximum TIG (first lieutenant (1LT) = 5 years, CPT = 7 years, MAJ = 7 years) will be promoted without regard to a position vacancy unless that officer has voluntarily delayed or declined promotion.

	b.  In Army Board for Correction of Military Records (ABCMR) Docket Number AR20070004568, dated 24 July 2007, the Board determined that a MAJ's DOR should be corrected to the officer's maximum TIG date.  That case dealt with a member of the USAR, not the ARNG.  However, it shows that where the Army has misapplied the rules regarding DOR for officers with maximum TIG, the date should be corrected.

	c.  The applicant was selected for promotion by two different promotion boards while mobilized.  He was selected for promotion by the 2007 mandatory Major Selection Board (12 March 2007) and by an SSB for the 2006 mandatory Major Selection Board (28 September 2007).  As the SSB promoted him from his primary zone, that selection board should take precedence over the 2007 board.  However, for both selection boards the DOR should have been the maximum TIG date.  As he was mobilized when he was selected for promotion and placed on the promotion list, the Army was required to apply the provisions of National Guard Bureau (NGB) Memorandum Number 04-0025.  Therefore, the applicant should have been promoted with a DOR of 19 September 2007, his maximum TIG date.

	d.  The applicant has been attempting to obtain his proper DOR for a lengthy period of time.  The Army has failed to apply its own rules regarding his DOR in a just and proper manner.  As NGB Memorandum Number 04-0025 directly applies to the applicant's case, his records should be corrected.

4.  Counsel provides:

* NGB Form 22 (Report of Separation and Record of Service) effective 13 July 2008
* ABCMR Docket Number AR20070004568, dated 24 July 2007 (another applicant)
* ABCMR Docket Number AR20090009533, dated 22 April 2010
* ABCMR Docket Number AR20110011334, dated 3 May 2012

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 AR20110011334 on 3 May 2012.

2.  Counsel previously submitted a request for reconsideration of ABCMR Docket Number AR20110011334 on 29 March 2013.  The request was received within 1 year of the original Board's decision.  A staff member of the ABCMR erroneously assumed counsel was requesting reconsideration of ABCMR Docket Number AR20090009533, dated 22 April 2010, and administratively closed counsel's request.  Counsel provided then and he now provides a new argument.  The Board will now reconsider his request.

3.  Counsel states the Board determined a MAJ's DOR should be corrected to his maximum TIG date in ABCMR Docket Number AR20070004568 as a new argument.  This shows that where the Army has misapplied the rules regarding DOR for officers with maximum TIG, the date should be corrected.

4.  The applicant previously served in the U.S. Marine Corps from 24 October 1986 to 1 December 1991.  He was appointed as a 1LT in the LAARNG on 2 April 1993.  He completed the Reserve Component Engineer Officer Advanced Course.  He was assigned to the 528th Engineer Battalion, Monroe, LA, and he was promoted to CPT on 7 August 1994.

5.  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).

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

7.  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 would revert to ING status the day immediately following muster day.

8.  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).

9.  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.

10.  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 ARNG effective that date.

11.  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.

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

13.  On 22 April 2010, the ABCMR denied his June 2009 request to correct his DOR to MAJ from 15 August 2008 to 30 August 2006.

14.  On 3 May 2012, the ABCMR denied his request to void his ING orders placing him in the IRR and consider his records by an SSB.

15.  Counsel references ABCMR Docket Number AR20070004568, dated 24 July 2007.  In that case:

	a.  A USAR CPT was selected for promotion to MAJ by a Reserve Components promotion board that convened on 7 March 2000, recessed on 6 April 2000, and was approved on 19 July 2000.  The USAR CPT was promoted to MAJ with an effective date and DOR of 19 July 2000.  However, based on the required 7 years of TIG as a CPT, his promotion eligibility date to MAJ was established as 28 February 2000.

	b.  Title 10, U.S. Code, section 14304(a), provides that officers shall be considered for promotion to the next higher grade by a promotion board convened far enough in advance that, if the officer is recommended for promotion, the promotion may be effective on or before the date the officer will complete the required years of service.  The Board approved adjusting the USAR CPT's DOR to 28 February 2000 but his effective date was unchanged.

16.  Previously, an advisory opinion was obtained from NGB on 20 March 2012 in the processing of ABCMR Docket Number AR20110011334, the applicant's initial request.  NGB recommended disapproval of the applicant's request and stated the applicant had not met his burden of proof to establish the existence of an error or injustice and the State concurred with the recommendation to disapprove his request.  NGB stated:

	a.  He alleged he was erroneously transferred to the ING in 1997 versus being transferred to the IRR as he claimed he should have been.  He indicated this error deprived him of the opportunity to be considered for promotion by a subsequent mandatory promotion board.  However, he provided 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, NGB 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 in 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.  He referenced National Guard Regulation 614-1, dated 18 March 2010, which specified "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 was in effect and 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) as "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 he was transferred to the IRR in 2003 as a result.  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 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.

17.  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 applied in his case (residence, incompatibility, overseas employment, missionary obligation)
* the advisory opinion relied 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

18.  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)

19.  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 stated that commanders would review the service records of those Soldiers who did not respond to a letter, who did not attend the muster, and who did not give reasons for non-attendance, as well as in the case of undeliverable letters.  If it was determined that Soldiers would not be available for mobilization, they would be considered for discharge action or transfer to the IRR.

	b.  Paragraph 2-8 of the 1986 version stated active Soldiers might 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 participation, and other reasons.  All Soldiers being transferred to the ING would be given a copy of the ING information sheet that explained their responsibilities while in the ING.

20.  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 ARNG and USAR.

	a.  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.

	b.  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 TIG requirement for promotion from CPT to MAJ is 4 years in the lower grade and the maximum TIG requirement is 7 years in the lower grade.

	c.  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.  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.

2.  In the absence of evidence to the contrary, particularly evidence that shows the applicant requested to be transferred to the IRR (which he appears not to have questioned for over 10 years), his transfer to the ING is 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 TIG in the rank of 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.

3.  Counsel cited a case wherein an USAR officer's DOR was adjusted to his maximum required years in grade and contends that shows the Board can make corrections to the DOR when the Army misapplies DOR rules.  His contention is not disputed; however, it is found to be without merit in this case.  In the cited case, the officer was an active member of the USAR and, unlike the applicant, he had not been transferred to the ING.  He had been considered and selected for promotion by a promotion board.  However, he should have been considered by an earlier promotion board in order for his promotion to be effective on or before his maximum TIG.  The Board adjusted his DOR but not the effective date of the promotion.

4.  In this case, the applicant did not qualify for promotion consideration to any grade because he was not in an active status while in the ING and Army regulations governing DOR were not misapplied.

6.  In addition, while in the ING, he failed to muster despite the issuance of orders to do so.  His failure ultimately led to his discharge from the ARNG and transfer to the IRR on 15 June 2003.  One day before his discharge, 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.  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 to amend the decision of the ABCMR set forth in Docket Number AR20110011334, dated 3 May 2012.



      ______________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)                                         AR20140009957



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140009957



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1