RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         30 March 2006
      DOCKET NUMBER:  AR20050005817


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. Rowland C. Heflin             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his retired grade be changed
from colonel/O-6 (COL/O-6) to Brigadier General/O-7 (BG/O-7).

2.  The applicant states, in effect, that the governing regulations provide
that in the case of an officer selected for promotion who elects to
transfer to the Retired Reserve having completed the required number of
years of service will be transferred in the recommended grade.  He claims
he meets these requirements and his retired grade should have been BG/O-7.


3.  The applicant provides the following documents in support of his
application:  General Officer Management Office (GOMO) Regulation Extract;
Retirement Orders; General Officer Announcement; Separation Orders;
Separation Document (DD Form 214); National Guard Bureau (NGB) Form 22; and
Miscellaneous Personnel File Documents.

CONSIDERATION OF EVIDENCE:

1.  On 15 November 2002, the applicant was nominated for promotion to BG/O-
7 by the President.  At the time, he was serving as the Commander, Engineer
Brigade, 35th Infantry Division, Camp Girardeau, Missouri.

2.  On 4 January 2003, while the applicant's promotion to BG/O-7 was
pending affirmation by the Senate, the applicant received a Relief-For-
Cause Officer Evaluation Report (OER) for the period 5 February 2002
through 6 December 2002.  The Senior Rater, The Adjutant General (TAG) of
the Missouri Army National Guard (MOARNG), stated that the reason for the
applicant being relieved from his command was he took action to promote a
senior noncommissioned officer (NCO) to the rank of Sergeant Major, who he
had formally reprimanded one week earlier for engaging in an improper
relationship with a junior NCO.  Based on this event, the MOARNG TAG
withdrew the applicant's name from the promotion list.

3.  On 7 December 2002, the applicant was honorably separated from the
MOARNG and he was transferred to the United States Army Reserve (USAR)
Control Group (Retired Reserve).  These orders show he was transferred in
the rank and pay grade of COL/O-6.

4.  In connection with the processing of this case, an advisory opinion was
obtained from the Chief, Personnel Division, NGB.  This NGB official states
that the applicant was nominated for a Certificate of Eligibility (COE)
against a projected future vacancy in the 35th Engineer Brigade, and was
not guaranteed an actual promotion.  He further indicates that while the
applicant's promotion was pending Senate confirmation, the MOARNG TAG
withdrew his support for the applicant's promotion and his name was removed
from the promotion list.  This caused the applicant's immediate retirement
since he had already passed his mandatory removal date (MRD) as a COL/O-6
on 21 July 2002.

5.  The NGB official further indicated that the applicant's argument that
the governing regulations provide for his transfer to the Retired Reserve
in the recommended grade was reviewed by the NGB Legal staff, who
determined that the regulation referred to by the applicant is based on the
legal authority contained in Title 10 of the United States Code, Section
1374 (10 USC 1374), which has since been repealed.  10 USC 1374 addressed
the situation where an officer recommended for promotion attained MRD prior
to completion of the promotion process.  In such instances, the provisions
of this law allowed the individual to be retired in the recommended
(higher) grade, rather than be penalized by the vagaries of the process.

6.  The Chief, Personnel Division further stated that the NGB legal staff
indicated that the passage of the Reserve Officer Personnel Management Act
(ROPMA) in 1994 repealed 10 USC 1374(a) and addressed the above situation
in a different fashion in 10 USC 14507(b).  This law, as interpreted by The
Judge Advocate General (TJAG) of the Army, allows for COL/O-6 who are on
the recommended list for promotion to the next higher grade will not be
removed from the Reserve active status list simply because the individual's
MRD occurred while their promotion was being considered.  The regulation
referred to by the applicant has not been revised to include this provision
of the law and erroneously sets out the process listed in the repealed
statute.

7.  The NGB advisory opinion contains a recommendation that the applicant's
request be disapproved.  This recommendation is supported because the
applicant was selected for promotion to BG/O-7 by the MOARNG TAG to fill a
unit vacancy, but that selection was subsequently withdrawn and the
applicant's promotion was never confirmed by the Senate.  This opinion
rests on the law contained in 10 USC 12774, which the NGB contends is the
relevant statute in this case.  This recommendation was concurred with by
the NGB Legal Office and NGB GOMO.

8.  On 14 February 2006, the applicant was provided a copy of the NGB
advisory opinion in order to provide a response to its contents.  To date,
he has failed to reply.
9.  Army Regulation 135-156 (Personnel Management of General Officers)
provides for assignment and permanent promotion of Reserve officers of the
Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve
(USAR) not on the active duty list to and within general officer (GO)
grades.  It also sets forth procedures for retaining these officers in and
removing them from and active Reserve status.

10.  Paragraph 1-11 of the GO management regulation provides guidance on
promotion upon transfer to the Retired Reserve.  It states that an officer
recommended by a board for promotion or Federal recognition under this
regulation may later elect transfer to the Retired Reserve.  If the
retirement is for physical disability or as a result of completing the
required number of years of service or reaching the agency at which
discharge or transfer to the Retired Reserve is required by law, the
officer will be transferred to the Retired Reserve in the recommended
grade.  An officer entitled to a higher grade under another provision of
law will also be transferred to the Retired Reserve in the higher grade.
Except as indicated, upon being transferred to the Retired Reserve, a
Reserve commissioned officer will be placed on the Retired List in the
highest grade in which the officer served satisfactorily in the Army as
determined by the Secretary of the Army.

11.  10 USC 12771 (Reserve Officers:  Grade on Transfer to Retired Reserve)
provides the legal authority for establishing the grade of Reserve officers
upon transfer to the Retired Reserve.  It states that unless entitled to a
higher grade under another provision of law, a Reserve commissioned
officer, other than a commissioned warrant officer, who is transferred to
the Retired Reserve, is entitled to be placed on the Retired List in the
highest grade in which he/she served satisfactorily, as determined by the
Secretary concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been transferred to the
Retired Reserve in the grade of BG/O-7 and the supporting evidence he
submitted were carefully considered.  However, there is insufficient
evidence to support his claim.

2.  Although no longer applicable based on the publication of the ROPMA and
the supporting statutory authorities, the regulatory provisions referred to
by the applicant, even when they were applicable, were clearly designed to
protect a member selected for promotion who was forced to leave an active
status prior to promotion based on a MRD.  Even if these provisions of the
regulation were still valid and supported by law, they still would not be
applicable in this case.

3.  Under current law, unless entitled to a higher grade under some other
provision of law, a member is entitled to be placed on the Retired List in
the highest grade in which he/she served satisfactorily, as determined by
the Secretary concerned.

4.  The evidence of record in this case confirms the applicant was relieved
for cause, and removed from the promotion list by the MOARAG prior to his
promotion being confirmed by the Senate.  Therefore, he was no longer on
the promotion list when he was transferred to the Retired Reserve.

5.  Further, given the circumstances surrounding his removal from command,
and because he was never actually promoted to the higher grade, a
Secretarial satisfactory service determination for the grade of BG/O-7 is
not warranted.  Therefore, it would not be appropriate to grant the
requested relief in this case.

6.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JTM _  ___CAK _  ___RCH    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.



                                  _____John T. Meixell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005817                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/03/30                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2002/12/07                              |
|DISCHARGE AUTHORITY     |NGR 635-100                             |
|DISCHARGE REASON        |Retired Reserve                         |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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