PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           19 November 2002                  
	DOCKET NUMBER:   AR2002067538

	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. John N. Slone		Chairperson	
	Ms. Sherri V. Ward		Member	
	Mr. Melvin H. Meyer		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 reversal of his non-selection board action, reinstatement in the Army National Guard (ARNG) and elimination of his referred officer evaluation report (OER).  He also requests that his application be joined with another member of the Massachusetts (MA) ARNG who has also appealed for correction of his military records.

3.  The applicant states that he was not allowed due process to explain the mismanagement of his commander who was The Adjutant General (TAG) of the MAARNG.  He pursued the issue as a matter of principle.  He was the senior best qualified colonel in the MAARNG when his commander selected an unqualified colonel to become the next general because of political patronage and if he did not fight the politicizing of the MAARNG, then the MAARNG would only continue to degrade.  He also states that he filed a complaint with the Department of Defense Inspector General (DAIG) and received a letter stating that the matter would be resolved in 90-180 days.  Approximately 2½ years later, he learned from a DAIG investigator that the DA policy would not allow investigation of a "states-rights" issue.  It has been almost 7 years and the politicizing of the ARNG is absolutely wrong and a major injustice to all who serve.  

	He submits copies of his MAARNG separation orders, 14 pages of chronological notes, several newspaper articles from the Boston Globe and Boston Herald pertaining to misconduct by the MAARNG TAG and indicating that the MAARNG TAG was under investigation for a variety of offenses, his Biographical Information, his OER’s for the periods ending 26 September 1993 and 11 April 1994, and a deposition given by the MAARNG TAG.

	He also states that the Selection Retention Board (SRB) convened by the MAARNG TAG in September 1994 was entangled in partisan politics and political favoritism.  The political favoritism guidelines were behind their decisions to reduce the force structure.  He was fully qualified to become a general and if he did not fight the politicizing of the MAARNG, then it would only continue to degrade the force.  

	He further states that he knew someone on the outside had to continue fighting for the soldiers on the inside.  He just received a copy of his former commander's sworn deposition given in July 2001 that clearly shows that the MAARNG TAG worked a conspiracy against himself by forcing his commander to sign a false statement.

4.  The applicant’s military records show that he was appointed in the MAARNG as a second lieutenant effective 11 July 1965.

5.  He attained the rank of lieutenant colonel effective 23 November 1983.

6.  He was selected for retention in the MAARNG effective 27 April 1988.

7.  He was considered and selected for promotion to colonel with an effective date of 23 November 1988 and a date of rank of 6 November 1987.

8.  On 21 July 1988, he elected to decline promotion to colonel.  His request was approved.

9.  He was considered and selected for promotion to colonel in 1990 and he was promoted to colonel effective 24 October 1991.

10.  The applicant’s two OER’s in the rank of colonel prior to the 1994 SRB show he received the maximum rating on each report, and the Senior Raters rated his potential in the top-block.

11.  He was considered and not selected for retention in the MAARNG by the SRB that convened on 21 November 1994.

12.  His records show he received a change of rater OER for the period 2 May 1994 through 7 January 1995, subsequent to the 1994 RCSB, which shows he received a less than maximum rating and the Senior Rater rated his potential well below center of mass.  His Senior Rater for the report ending 11 April 1994 and this OER was the MAARNG TAG.  It has not been shown that the OER was referred to the applicant as an adverse report.  The applicant did not appeal or request a Commander’s Inquiry (CI).

13.  On 6 January 1995, he elected to be transferred to the Retired Reserve.

14.  He was honorably separated from the MAARNG effective 7 January 1995 and transferred to the Retired Reserve.

15.  The MAARNG TAG was demoted to colonel in July 1999.  In December 1999, the TAG was relieved of his duties and removed as the TAG subsequent to reprimanding by the Army Chief of Staff.

16.  The National Guard (NG) Bureau publishes NG Regulation 635-102.  The regulation, in effect at the time, provided guidance and procedures for conducting the Officer SRB.  It “prescribed policies and procedures for establishing and conducting selection boards used in the ARNG program for selective retention of officers and warrant officers beyond 20 years of qualifying service for retired pay.”  The policy included providing for progression of qualified officers, by retaining the best officers for the comparatively few higher-level positions, by providing a career incentive, and by providing the opportunity to serve beyond 

20 years with advancement to higher ranks at the peak years of an officer’s effectiveness.  The regulation specified that the TAG may approve or disapprove the SRB report in its entirety and remove an officer’s name from the non-select list to the select list.  It also specified that the TAG may not remove an officer’s name from the select list.

17.  The regulation required the members to take the following oath:  “You [board member] do solemnly swear (or affirm) that you will, without prejudice or partiality, and having in view both the special fitness of individuals and the efficiency of the ARNG, perform duties imposed upon you, and further, that you will not divulge the proceedings or results of this board except to proper authority.”

18.  The regulation also provided that “Individuals being considered for selective retention may write letters to the selection board inviting attention to any matter of record concerning themselves that they feel important in the review of their records.”

19.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity to request a CI or to appeal disputed reports.   Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

20.  The regulation provides for requesting a CI in cases when a report may be illegal, unjust, or otherwise in violation of the regulation.  Commanders are required to look into the matter and may then conduct an official inquiry into the matters.  The regulation provides that “The primary purpose of the commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustice after the OER is accepted at HQDA.”  It also provides that “The results of the commander’s inquiry that are forwarded to HQDA will include findings, conclusions and recommendations in a format that could be filed with the OER in the officer’s Official Military Personnel File for clarification purposes.”

21.  The regulation also specifies that the Board may deny an application if it determines that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

CONCLUSIONS:

1.  The applicant is not entitled to correction of his military records to show reversal of his non-selection board by the SRB and reinstatement in the MAARNG.  

2.  The applicant’s contention that he was the senior best-qualified colonel and his commander selected an unqualified colonel to become the next general has been noted.  It has not been shown; however, that his non-selection was improper or erroneous.

3.  It has not been shown that his consideration by the SRB was operated outside military regulation or contrary to Federal law.  Its appointment and proceedings were in accordance with pertinent regulations.  The SRB has not been shown to have been improperly appointed or conducted.  The SRB is a tool used to shape the ARNG force, by incentives to serve and to provide progression for the best officers to higher fewer positions.  It is necessary and many times painful to the officers not selected for retention.  ARNG members cannot expect to be retained year after year while the younger officers are seeking advancement for the betterment of the organization.  The applicant has not shown that he did not get fair consideration and would have otherwise been selected by an SRB not corrupted or badly influenced by the TAG and a strictly political process.  The Board notes that the applicant’s appeal is based primarily on the removal of the TAG from the MAARNG.  The Board does not dispute the TAG committed wrongdoing.  He was relieved from his duties in December 1999, 5 months after he had been demoted to colonel and removed as the TAG after a reprimand by the Army Chief of Staff.  The Board does dispute, however, that the TAG directed the SRB, by influence or otherwise, to not select the applicant for retention because he did not participate in political patronage, or that the SRB did not select the applicant for retention because he did not participate in political patronage.  The applicant has not shown otherwise.

4.  It has not been shown that the SRB president and members were selected based on political biases and partialities, or that they showed prejudice and partiality and unfairness by removal of certain officers, regardless of their excellent records.  And it has not been shown that the SRB was so corrupt and politicized it was materially tainted by prejudice and paramount considerations of favor for those participating in political patronage.  

5.  Amidst the allegations and information submitted by the applicant, it has not been shown to the satisfaction of the Board the applicant was asked to participant in political patronage by the SRB MAARNG members, nor that he was advised or warned that he must participate in order to be selected for retention by the 1994 SRB.
6.  It is also noted that while the TAG appoints the SRB’s, his influence is thereafter limited.  He cannot add to the select list the names of officers not selected, and he cannot remove from the list the names of those selected.

7.  Despite his request concerning promotion, the applicant has not shown he should have been or should now be promoted to general.

8.  In addition to all of the foregoing conclusions, the Board also considered the images of appearance in this case, and in other related cases, of improper influencing of the 1994 SRB by the TAG.  The TAG’s questionable political actions at the time and later demotion and removal from that position support this consideration.  However, while this appearance is of sufficient weight to consider his case favorably, it is still concluded that it did not cause the applicant to not be selected for retention by the 1994 SRB.  It is concluded that the SRB was not tainted, and it has not been shown that a tainted SRB caused the applicant’s non-selection for promotion to general.  The preponderance of the evidence does not show error or injustice in this case, and it does not show probable error or injustice.

9.  The SRB was counted on to make tough decisions, not only affecting those not selected, but those who were selected, and to make room at the top.  To invalidate the 1994 SRB would unfairly invalidate those who were selected, and those who have advanced since that date.

10.  The Board notes that the OER for the period 2 May 1994 through 7 January 1995 should now be deleted and entirely removed from his records based on obvious bias subsequent to the SRB process and results.  The GAP in his OER history for this period should be replaced with a non-prejudicial statement of explanation.

11.  The applicant’s reference to another member of the MAARNG is noted; however, this does not support his case.

12.  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.  In this case, the applicant has failed to submit relevant evidence to the Board to demonstrate the existence of probable material error or injustice evidence that would satisfy this requirement.

13.  In view of the foregoing, 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 deleting in its entirety the contested OER covering the period 2 May 1994 through 7 January 1995 from the records of the individual concerned; and

b.  by placing an appropriate non-prejudicial statement in his record, explaining the absence of the required OER.

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

BOARD VOTE:  

_MHM___  _SVW___  _JNS__    GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002067538	
SUFFIX		
RECON		
DATE BOARDED	20021119	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.10	
3.	134.00	
4.		
5.		
6.