A linear stability analysis is carried out to study viscoelastic fluid convection in a horizontal porous layer heated from below and cooled from above when the solid and fluid phases are not in a local thermal equilibrium. The modified Darcy-Brinkman-Maxwell model is used for the momentum equation and two-held model is used for the energy equation each representing the solid and fluid phases separately. The conditions for the onset of stationary and oscillatory convection are obtained analytically. Linear stability analysis suggests that, there is a competition between the processes of viscoelasticity and thermal diffusion that causes the first convective instability to be oscillatory rather than stationary. Elasticity is found to destabilize the system. Besides, the effects of Darcy number, thermal non-equilibrium and the Darcy-Prandtl number on the stability of the system are analyzed in detail. (C) 2009 Elsevier B.V. All rights reserved.