PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            20 March 2001
	DOCKET NUMBER:   AR2000043401

	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. Fred N. Eichorn		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. William D. Powers		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, reconsideration of his 1994 request that his 9 September 1990 discharge from the Texas Army National Guard (TXARNG) be voided, that he be retroactively promoted to brigadier general (BG), and that he receive all back pay and allowances due as a result.  

3.  The applicant states, in effect, he was not treated fairly and justly when he was discharged from the TXARNG.  He claims that he should not have been discharged and should have instead been promoted to BG.  He indicates that his case was investigated by the National Guard Bureau (NGB) and this investigation found evidence that confirms he was the victim of discrimination, which resulted in his being discharged from the TXARNG.  

4.  The applicant explains that in March 1990, he failed the sit-up portion of the Army Physical Fitness Test (APFT), which resulted in his receiving an adverse annual Officer Evaluation Report for the period 24 April 1989 to 23 April 1990 and in his being placed under a suspension of personnel actions (FLAG).  He states that all five brigade commanders took the same APFT and three of the five failed, he and two other Anglo colonels.  Of the three failures he was the only one placed under a FLAG and who received an adverse OER.  

5.  The applicant’s military records show that he began his service with the TXARNG on 4 May 1963 and served until being honorably discharged on 
9 September 1990.  At the time of his discharge from the TXARNG he had completed 27 years, 4 months, and 6 days of service for that period and a total of 37 years, 4 months, and 14 days for pay.  Upon discharge, he was transferred to the United States Army Reserve (USAR) Retired Reserve, in the rank and pay grade of colonel/0-6. 

6.  In May 1993, an investigation into the allegations that the applicant had been discriminated against on the basis of his national origin was completed by a NGB Equal Opportunity (EO) investigating officer.  The applicant alleged discrimination in that he was not allowed to retake the Army Physical Fitness Test (APFT) and be considered for promotion to BG, while other officers who were Anglo and had failed the APFT were allowed to retake the APFT.  In fact, he alleged that one of those officers had his BG promotion packet forwarded even before he retook the test.  He also alleged that his discharge from the TXARNG and transfer to the USAR Retired Reserve in September 1990 was forced.

7.  In response to the applicant’s initial allegations, the State contended that the applicant could not take the retest because of his profile and that the regulation would not allow for his retest before his profile expired.  They further contended that the primary reasons for not nominating him for promotion to BG was that he was up against the age limit and there was no BG position for him to be placed into prior to his packet going forward.  In addition, the State claimed that he could not be retained as a colonel because there were no O-6 positions available for him to go to at the State headquarters.

8.  The NGB EO investigator discovered that the applicant’s failure to retest was not for his lack of trying.  He attempted and requested a retest on three separate occasions and was not given the opportunity to do so.  In addition, the investigation revealed that the applicant would have been fully eligible for promotion consideration by the November 1990 general officer (GO) Federal recognition board and for a Certificate of Eligibility had he been allowed to retest or had been granted an exception to the APFT rule based on his holding a valid temporary profile.  Further, the age 55 requirement is waivable and the applicant could have been named as a successor to a retiring BG which would have allowed his promotion into a valid position that existed.  

9.  The State had erroneously implied, in a 29 April 1991 letter to the applicant from the State AG, that he was facing a mandatory removal date (MRD) prior to the retirement of the BG holding the position on 31 December 1991.  However, the record indicates that the applicant’s MRD was actually 3 March 1993.  In this letter, the AG also stated that he had been under the impression that the applicant had taken and failed the APFT twice.  

10.  The AG also cited the regulatory guidance that only individuals with a permanent profile or those holding a temporary profile of longer than six months were eligible to take an alternate APFT.  Therefore, the applicant was ineligible to take an alternate APFT.  However, again the record shows the applicant’s temporary profile was granted for a period in excess of six months, from June through December 1990, which would indicate he should have been allowed to take the alternate APFT. 

11.  The NGB EO investigator also indicated that although all the separation documents published on the applicant indicated that he was voluntarily discharged at his own request, it is apparent that these published documents were in error and did not contain the true reasons for the applicant’s discharge, since it was well documented in the record that the applicant did not wish to resign.   The investigator further indicated that there were at least five colonel positions open at the State headquarters in the summer of 1990 and no legitimate regulatory basis for the applicant’s discharge from the TXARNG was found during the review of the case. 
12.  The investigator indicated that the most damaging evidence discovered during the investigation was that an OER rendered on another colonel, who had also failed the APFT for the same period, contained the following statement “A record APFT was not conducted during this period.”  The investigator found it inconceivable that the rater on this report, who issued the applicant an adverse OER based on his failure of the same APFT, would not know this was a false statement.  This OER, in the opinion of the investigator, essentially destroyed the State’s credibility in the case.  

13.  Given the findings in this case, the investigator concluded that looking at the adverse OER issued to the applicant in conjunction with the way his separation was handled gives the appearance that the OER was simply an engineering of some justification for the separation action to come.  

14.  The NGB EO investigator finally concluded that the preponderance of the evidence in this case clearly fell in favor of the applicant and the command’s case from beginning to end is clearly pretext and a series of manipulations, deceit, and selective enforcement of regulations in an attempt to justify its pretext.  The applicant was the victim of disparate treatment and therefore, the investigator recommended a finding of discrimination on all issues.  

15.  On 8 December 1993, the State AG of the TXARNG published a memorandum in which he indicated his support for the reinstatement of the applicant in the TXARNG retroactive to the date of his separation, 9 September 1990, until his MRD of 11 March 1993 with full back pay and allowances.  The AG also indicated that he fully intended to pursue a retroactive promotion to BG for the applicant.  

16.  The State AG stated that a prima facie case had been established that the applicant’s discharge was the result of improper racial discrimination and that the evidence suggests the applicant should have been recommended for promotion to BG had he received fair and impartial treatment.  He indicated that had he been the State AG at the time, he would have nominated the applicant as the Assistant Division Commander of the 49th Armored Division.  He concluded that this action was necessary to correct the injustice to which the applicant had been subjected. 

17.  On 5 January 1994, the then Governor of the State of Texas, petitioned for the correction of the applicant’s records and indicated she shared the State AG’s concerns in this case.  She concluded that their common goal was that all members of the TXARNG be treated fairly and with dignity.  If they failed to achieve that goal in the applicant’s case, she recommended that all efforts be expended to rectify the situation.  

18.  On 25 January 1994, the Director, Army National Guard (DARNG) in a memorandum to this Board indicated that there was substantial evidence that the applicant was the victim of racial discrimination while assigned to the TXARNG.  The DARNG stated his full support for the applicant’s reinstatement to an active status in the grade of colonel retroactive to the date of his separation, 
9 September 1990, until his MRD of 11 March 1993 with full back pay and allowances.  The DARNG concluded this action was necessary to correct the severe injustice to the applicant and to affirm the Army’s commitment to equal opportunity.  

19.  On 25 July 2000, the then Governor of Texas, indicated in a letter to this Board, that he had been advised on the applicant’s case by his State AG, who indicated that the applicant was deserving of a retroactive promotion to BG in the TXARNG.  In addition, he indicated that although the applicant was now retired, this promotion would allow him to correct any lack of fairness during his past consideration for promotion and subsequent discharge.  

20.  In connection with the processing of this case, an updated advisory opinion was requested of and received from the NGB, which was dated 30 January 2001. In this most recent opinion, NGB officials recommended that the applicant’s request be granted.  They indicated that the former State AG verified that the applicant should be reinstated in the TXARNG and be promoted to BG retroactively at the earliest date eligible, and they fully concurred with these recommendations.  In addition, they opined that if he were retroactively promoted to BG his MRD should be adjusted accordingly and he should receive all due back pay and allowances due as a result.  

21.  Army Regulation 135-156 (Personnel Management of General Officers) provides the policy and procedure for the assignment and permanent promotion of Reserve officers of the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR) to and within general officer (GO) grades.

22.  Paragraph 1-4 outlines responsibilities for general officer promotions in the USAR and ARNG.  It states, in pertinent part, that State promotion of ARNG GOs are functions of the State.  It also mandates that personnel managers will ensure equal treatment and opportunity without regard to race, color, religion, sex, or national origin. 

23.  Paragraph 2-1 contains the ARNG general officer promotion authority and states, in pertinent part, that the selection and promotion of ARNG officers to State general officer grades are functions of the authorities of the several States, Puerto Rico, the Virgin Islands, Guam and the District of Columbia. 

24.  Paragraph 2-2 contains guidance on the Federal recognition of ARNG general officers.  It states, in pertinent part, that to be granted Federal recognition in a general officer grade, an officer must be examined by a Headquarters, Department of the Army (HQDA) Federal recognition board convened by the Secretary of the Army (SA), which are normally conducted in May and November. 

25.  Paragraph 2-5 (Grade Upon Transfer to the USAR) states, in pertinent part, that upon transfer to the USAR, an ARNG general officer will advance to the highest temporary, Regular, or Reserve grade (major general or below) held in the Army, unless the SA decides that such action is not in the best interest of the Army.  This policy applies regardless of any other provision of the regulation.  

26.  Paragraph 4-1 prescribes policies and procedures for removing Reserve general officers, both USAR and ARNGUS, from both an active status and general officer positions.  It states, in pertinent part, that officers will be removed from an active status on the last day of the month in which they attain age 60, if serving in the rank of BG or within 30 days after completion of 30 years of commissioned service or on the fifth anniversary of the date of appointment as a BG, whichever is later.

CONCLUSIONS:

1.  The Board found that reconsideration of this case was warranted in the interest of justice.  Based on the severity of the substantiated racial discrimination and resultant injustice to the applicant in this case, the Board is compelled to concur with the comprehensive relief recommendations of the former Governors of Texas, their respective AGs, and NGB officials, which are that the applicant be reinstated in the TXARNG, promoted to BG at the earliest possible date, and be paid all back pay and allowances due as a result. 

2.  The results of the NGB EO investigation confirm that the applicant was the victim of disparate treatment as a result of racial discrimination, which resulted in his unjustly being denied consideration for promotion to BG and in his being coerced into early separation from the TXARNG.  Given these substantiated findings of racial discrimination, the Board finds that it would be appropriate to void the applicant’s 9 September 1990 discharge from the TXARNG and to concurrently reinstate him to an active status as of that date.  

3.  In addition, by regulation, the selection and promotion of ARNG officers to GO grades are functions of the States, and it is clear that, in this case, Texas State officials strongly support the applicant’s promotion to BG as if he were nominated to the November 1990 Federal recognition board.  Given this State support, the Board concludes that it would be appropriate to retroactively promote him to BG with Federal recognition effective the date the Senate confirmed the November 1990 list.  

4.  Further, the Board finds that it would be appropriate to continue to carry the applicant in an active status in the TXARNG from the date of his promotion to BG until his MRD for that rank and also to provide him all back pay and allowances due as a result.  

5.  Although the Board has no authority to correct State ARNG records, governed under Title 32, the Board is of the opinion that so far as the Department of the Army is concerned, it would be in the best interest of justice to correct the ARNG records of the individual concerned as recommended below.  In this case, these corrections are recommended with the full concurrence of both Texas State and NGB officials.  

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a.  voiding the 9 September 1990 discharge from the of the individual concerned and reinstating him to an active status in the TXARNG as of that date; 

b.  promoting him to BG, effective the date the November 1990 Federal recognition board results were approved by the Senate and submit his name to the current Senate for confirmation;

c.  immediately proceeding with the relief set forth without further action by this Board once the Senate confirms his BG Federal recognition;

d.  transferring him to the USAR Retired Reserve in the rank and pay grade of BG/0-7 on his MRD for that rank;

e.  providing him credit for all drills, annual training, active duty from 
9 September 1990 until the date of his transfer to the USAR Retired Reserve as a BG (credit will be based on an average of the number of points accumulated by him on a yearly basis for his previous 3 years of TXARNG service); and 

f.  providing him all back pay and allowances due as a result of the corrections outlined above.

BOARD VOTE:  

___fe ___  ___rjw___  ___wdp _  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

______Fred N. Eichorn____
		          CHAIRPERSON

INDEX

CASE ID	AR2000043401	
SUFFIX		
RECON		
DATE BOARDED	2001/03/20	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1990/09/09	
DISCHARGE AUTHORITY	NGR 635-100	
DISCHARGE REASON	Individual Request	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.  310	131.0000	
3.		
4.		
5.		
6.