PROCEEDINGS

	IN THE CASE OF:

	BOARD DATE:            6 September 2001                  
	DOCKET NUMBER:   AR2000048339

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 promotion to major general (MG) effective 1 April 1996 (the date of promotion of officers on the General Officer Selection List), revocation of the State of New York retirement orders dated 6 November 1998, revocation of orders placing him on the Retired List as a brigadier general (BG) dated 9 October 1998, reinstatement to his last active military position from 29 November 1998 through 10 May 2000.  He further requests back pay and allowances in the grade of MG from 1 April 1996 to 30 November 1998 and for all drills, annual training and additional annual training.  He also requests retirement credit and transfer to the Retired List in the grade of MG.

3.  The applicant states, in effect, that he was nominated for promotion to MG by the Governor of New York and denied promotion as a result of a flagging action.  On 30 November 1998 he was involuntarily and improperly transferred to the USAR Control Group (Retired), prior to his promotion and prior to the resolution of the Inspector General’s investigation.  He further states that under the provisions of Title 10, United States Code he was promoted to MG as a result of a State promotion and selection by a General Officer Federal Recognition Board (GOFRB) and he should not have been separated from the New York Army National Guard (NYARNG).

4.  The applicant’s military records show that he was honorably discharged from the NYARNG effective 31 March 1966.

5.  He was assigned to the USAR Control Group (Reinforcement) effective 1 April 1966.  He was promoted to first lieutenant effective 9 July 1967.

6.  He was appointed in the NYARNG as a first lieutenant effective 30 November 1970.  He attained the grade of colonel effective 8 April 1986.

7.  He was promoted to BG effective 31 March 1988.  Federal recognition was granted effective 23 November 1988.

8.  He was separated as the Assistant Adjutant General and honorably separated from the NYARNG effective 28 February 1993 and transferred to the USAR Control Group (Retired).

9.  He was reappointed into the NYARNG as a BG effective 25 September 1995. He executed an Oath of Office accepting the appointment in the NYARNG on this date.

10.  He was promoted to MG effective 25 September 1995. 

11.  On 27 November 1995 he was released from the Retired Reserve and transferred to the USAR Control Group (Reinforcement) (sic).  On 28 November 1995 he was released from the USAR and reappointed in the NYARNG in the rank of BG (sic).

12.  He was reviewed and recommended for promotion to MG by an ARNG GOFRB.

13.  Based on a review by the National Guard Bureau (NGB), General Officer Branch, it was determined that on 1 May 1996, the applicant’s name was withheld from the Federal recognition recommended list for promotion to MG pending completion of an investigation.

14.  On 4 June 1996, the Governor of New York nominated him as MG of the NYARNG.  The New York senate confirmed his nomination on 14 June 1996.  He did not receive US Senate confirmation nor did he receive Federal recognition for promotion to MG.

15.  He was honorably separated on 30 November 1998 and transferred to the USAR Control Group (Retired).  On 1 December 1998, he was placed on the Army of the United States Retired List in the grade of BG.

16.  His date of birth was 22 November 1938 and with the rank of MG, the applicant would have reached age 62 on 22 November 2000, with 35 years of commissioned service on 1 April 2001.

17.  On 10 May 2000, an official of the Office of the Inspector General, Investigations Division advised the applicant that the investigation into allegations against him had been completed.  It was concluded that none of the allegations were substantiated.

18.  Army Regulation 135-156, prescribes the policies and procedures for promotion of Reserve general officers.  Chapter 4 of this regulation requires the removal from an active status of general officers entitled to retired pay.  This chapter specifies that general officers will be removed from active status by discharge or transfer to the Retired Reserve.  Chapter 4 further specifies that general officers may not be retained in an active status if they are entitled to retired pay by virtue of prior military service, except as prescribed in chapter 5.   

19.  Army Regulation 136-156, chapter 5 establishes retention provisions for Reserve general officers.  This chapter specifies that Reserve general officers qualified for retired pay (BG’s may be retained until they reach age 60 and MG’s may be retained until they reach age 62) may, with their consent, be retained in an active status by the Secretary of the Army.

20.  Title 10, U.S.C., chapter 1405 (Promotions), section 14311 (Delay of promotion: involuntary) prescribes the delay of promotion (involuntary) of an officer to a higher grade.  This section specifies that an officer shall be retained on a list of officers found qualified for Federal recognition during an investigation. If no disciplinary action is taken, or if charges are withdrawn or dismissed the officer, upon promotion to the next higher grade, is entitled to the same date of rank and same effective date for pay and allowances of the grade to which promoted, as the officer would have had if no delay had intervened. 

21.  The Chief, Army Personnel Division, Departments of the Army and the Air Force NGB, recommended approval of the applicant’s request.  In addition to the recommendation, the Chief noted the discrepancies she found in the applicant’s case.  She stated that in Paragraphs 5 and 8 of the continuation sheet for Item 9 (DD Form 149) of the applicant’s request, the applicant states he was improperly transferred to the USAR Control Group (Retired).  Legal opinions were provided concerning the appropriate action to be taken concerning the applicant’s status and age.  She further stated that in Paragraph 9 of the continuation sheet for Item 9 (DD Form 149), the applicant stated he was promoted by the State in accordance with Title 10.  Federal Code (Title 10 U.S. Code) does not authorize, address, or in any way pertain to State promotion.  The applicant was not promoted in his State under any provision of Title 10.  The applicant met the December 1995 GOFRB for consideration and recommendation for Federal recognition to the rank of MG.  On 1 May 1996, his name was withheld pending completion of an investigation into the allegations.  Ultimately, none of the allegations were substantiated.  Title 10 allows that an officer appointment to a higher grade may be delayed if an investigation is being conducted to determine whether disciplinary action should be brought.

22.  The opinion was forwarded to the applicant for rebuttal on 13 March 2001. He concurred on 30 March 2001.

23.  On 21 August 2001, an official of the General Officer Management Office, NGB, advised a staff member of the Board, that in early Fall 1995, his name was forwarded for Senate confirmation.  Based on this action, and comparable to appointment of other general officers at the time, it is realistic to presume that the applicant would have received Senate confirmation with simultaneous Federal recognition extended on 19 September 1996. 

CONCLUSIONS:

1.  The applicant was selected for promotion to MG, and continued to be otherwise qualified for promotion during the entire period of delay.  He is entitled to reinstatement and constructive service credit with pay and retirement points for the period of 1 December 1998 to 22 November 2000 based on his improper transfer to the Retired Reserve, until his mandatory removal date (MRD).  In this case, the applicant is entitled to pay and allowances, and retirement points as determined by the NGB.  He is also entitled to pay at the rank of MG effective 19 September 1996.

2.  In cases such as this, where a flagging action is favorably removed from an individual’s record, i.e., based on being found not guilty of charges, he/she should not be penalized for lost opportunities occurring during the flagging period.  As in this case, the applicant clearly would have been promoted to MG on 19 September 1996, with Senate confirmation and Federal recognition, had his records not been flagged. 

3.  The Board concludes that the applicant is not entitled to the promotion on 1 April 1996, as he requested.  The General Officer Selection List, which included his name, was forwarded for Senate confirmation in the Fall of 1995 and did not receive Senate confirmation until 19 September 1996.  Had his name remained on that list he would have been promoted effective 19 September 1996.

4.  The Board concludes that the transfer from the Retired Reserve to the USAR Control Group (Reinforcement) was untimely and should have been effective 24 September 1995, prior to his appointment as a BG in the NYARNG.  The Board also concludes that the transfer from the USAR Control Group (Reinforcement) to the NYARNG was untimely and should have been effective 25 September 1995.  The Board notes that he executed an Oath of Office accepting appointment in the NYARNG effective 25 September 1995.

5.  It is also noted that at the time the applicant was removed from an active status, he had not applied for retired pay.  Accordingly, although he was qualified for retired pay, he was not yet entitled to such retired pay.  As a result, he was not subject to removal from an active status in accordance with Army Regulation 135-156, Chapter 4.  Mandatory removal statutes did not require his removal from an active status upon reaching age 60.  

6.  In view of the foregoing, and as far as the Department of the Army is concerned, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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

	a.  by showing the individual concerned was released from the Retired Reserve and transferred to the USAR Control Group (Reinforcement) effective 24 September 1995;

	b.  by showing he was released from the USAR Control Group (Reinforcement) and transferred to the NYARNG effective 25 September 1995;

	c.  by showing he received Senate confirmation with Federal recognition for promotion to MG effective 19 September 1996;

	d.  by showing the discharge dated 30 November 1998 and subsequent separation and transfer to the Retired Reserve is null and void and without force or effect, with reinstatement to his previous status;

e.  by showing he remained in the NYARNG and received credit for all drills, annual training, active duty, and back pay and allowances, that he would have received had he not been transferred to Retired Reserve; and

	f.  by showing he was separated and transferred to the Retired Reserve, as appropriate, based on his MRD removal date in the rank of MG and paying him back pay to which he is entitled under Federal law as the result of the correction to his Department of the Army records.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

_jtm____  __mhm___  __lls___    GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		        Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000048339	
SUFFIX		
RECON		
DATE BOARDED	20010906	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.04	
2.	131.05	
3.	135.00	
4.	135.01	
5.	135.02	
6.