IN THE CASE OF: BOARD DATE: 11 June 2014 DOCKET NUMBER: AR20130014096 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests retroactive promotion to the rank/grade of colonel (COL)/O-6 with an effective date and date of rank (DOR) of 1 February 2004. 2. The applicant states his last senior rating official directed his promotion to COL/O-6 as of 1 February 2004 and this promotion was also supported by his last three senior raters prior to that. The applicant attests that his promotion packet was a formality per past practice and protocol in that he had already been selected as the best qualified officer, statewide, for the COL/O-6 Deputy Commander position and he was issued orders to fill the position as of 7 June 2003. 3. The applicant states that as a Hispanic American, he was subjected to confirmed bias, which barred him from being promoted to COL/O-6. By manipulation of the promotion system by some senior officers, his promotion packet was repeatedly lost and subjected to unjust delays and a qualifying DA Form 67-9 (Officer Evaluation Report (OER)) intentionally was never written. The applicant states the Texas Army National Guard (TXARNG) has a history of personal bias, favoritism, ignorance of regulations, and discriminatory actions toward Hispanic Americans. He further attests that his commander, the State Surgeon, and the command's senior noncommissioned officer (NCO) informed him that some staff members were known to refer to his Mexican-American heritage in a most vulgar manner at senior staff meetings. 4. The applicant provides: * three DA Forms 67-9 * two DA Forms 4187 (Personnel Action) * reassignment orders * an extract from his DA Form 2-1 (Personnel Qualification Record – Part II) * an extract from a Unit Manning Report (UMR) * a self-authored letter COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests the applicant's retroactive promotion to COL/O-6 with an effective date and DOR of 4 July 2003 and payment of all back pay and allowances to which he is entitled as a result of this promotion. 2. Counsel states the applicant is a distinguished 33-year career Soldier, a Hispanic who came up through the ranks. The applicant was competitively promoted to Deputy Commander of the TXARNG Medical Command Group. The group is responsible for all Texas National Guard (TXNG) medical operations, including combat deployment. The Deputy Commander position carries with it the rank/grade of COL/O-6. His superiors, a major general (MG) and brigadier general (BG), enthusiastically endorsed his promotion to COL/O-6. However, a clique of rogue officers blocked his promotion by truly devious means. Counsel provides a 19-page executive summary wherein he contends the following issues within the TXARNG all contributed to preventing the applicant's well-deserved promotion: * bias and favoritism in a toxic environment * prejudice toward Hispanics * specific anti-Hispanic bias towards the applicant * reprisal against the applicant * a broken chain of command and wretched command climate * nursing a grudge against the applicant * a "good ol' boy" clique that protects its own * keeping an MG in the dark regarding the applicant's promotion status * numerous specific dirty tricks to bar the applicant's advancement through deliberate sabotage, to include – * attempting to persuade him to leave * stalling his promotion packet by losing it or repeatedly finding fault with supposed errors * inventing requirements * refusing to write his annual OER * blocking his access to an MG 3. Counsel contends that the applicant was denied promotion through unconscionable conduct by a handful of TXNG leaders who violated his Constitutional due process through a series of impermissible acts and behavior. They abused their positions, manipulated the system, and then advanced their friends. He states, "The Supreme Court has long recognized racial or cultural classifications as 'by [their] very nature odious to a free people whose institutions are founded upon the doctrine of equality' before the law. Government decision-making tainted by uneven treatment based on culture or race triggers the Due Process Clause….When ethnic or cultural bias is alleged in court, the government has the burden of proving that its challenged conduct is fair and just….Similarly, corrections [boards] must assess whether the complained-of actions involved: (a) actions which appear arbitrary, capricious, or in bad faith; or (b) decisions contrary to law, regulation, or directives designed to protect individual rights." 4. Counsel further contends that the applicant and his supporters have demonstrated obvious, systematic bias. Numerous interviews of officers and enlisted personnel corroborate anti-Hispanic prejudice; these statements remain unrebutted. They confirm conscious, purposeful, and mean-spirited denial of advancement to Hispanics, including the applicant. Clearly, he was thwarted by bias and favoritism which poisoned the TXNG at the time. The TXNG blatantly denigrated the applicant, slandering him as a man and field-grade officer with the slur "Mexican Mafia." 5. Counsel concludes the applicant is entitled to the rank he earned and the position he validly held for almost 1 year. 6. Counsel provides: * a 19-page executive summary * eight letters of support, commendation, and recommendation * 14 pages of vignettes and synopses of statements rendered by witnesses in support of the applicant's allegation of discrimination within the TXNG * two newspaper articles in support of the applicant's allegation of discrimination within the TXNG CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears that the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Having prior enlisted service in the TXARNG, the applicant was appointed as a commissioned officer in the ARNG in the rank/grade of first lieutenant/O-2 effective 9 July 1980. He was promoted to the rank/grade of lieutenant colonel (LTC)/O-5 with an effective date and DOR of 5 December 2000. His National Guard Bureau (NGB) promotion memorandum stated that time in grade for promotion to the next grade would be computed from his promotion eligibility date (PED) of 5 December 2000. 3. The applicant's three OER's rendered for the periods 1 January 2001 through 30 June 2003 show his raters and senior raters expressed favorable opinions of his duty performance and potential for future promotions and positions of increased responsibility. 4. A DA Form 4187, dated 7 June 2003, shows action was initiated to reassign the applicant within the TXARNG Medical Command from the Executive Officer position (paragraph 590, line 03) to the Deputy Commander/Chief Nurse position (paragraph 590, line 02). TXARNG Orders 176-1007, dated 25 June 2003, reassigned the applicant accordingly effective 7 June 2003. Item 35 (Record of Assignments) of his DA Form 2-1 indicates he was assigned accordingly. 5. A UMR prepared on 12 September 2003 shows the applicant was assigned to the Deputy Commander/Chief Nurse position (paragraph 590, line 02) which was coded as a COL/O-6 position. 6. A DA Form 4187, dated 5 December 2003, shows applicant was recommended for a unit vacancy promotion to COL/O-6 based upon assignment to the Deputy Commander/Chief Nurse position (paragraph 590, line 02). 7. In a memorandum for the President of the Federal Recognition Board, Camp Mabry, TX, undated, the applicant stated he was currently serving as the Deputy Commander, TXARNG Medical Command, and provided a synopsis of his military career and why he was well-deserving of promotion to COL/O-6. 8. TXARNG Orders 134-1034, dated 13 May 2004, honorably separated the applicant from the ARNG in the rank/grade of LTC/O-5. These orders show he was relieved from the Deputy Commander/Chief Nurse position (paragraph 590, line 02) and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) effective 6 April 2004. No reason for this reassignment is recorded. The additional instructions state that upon termination of Federal recognition, he would become a member of the USAR under the provisions of Title 10, U.S. Code, section 3352(b). 9. NGB Special Orders Number 136 AR, dated 3 June 2004, show the applicant's Federal recognition was withdrawn effective 6 April 2004 based on his transfer to the USAR in the rank/grade of LTC/O-5. 10. On 13 January 2005, the Chief, Office of Promotions, Reserve Components (RC), U.S. Army Human Resources Command (HRC) notified the applicant that a Department of the Army (DA) RC Selection Board was convened on 17 May 2004 to consider officers in his grade for promotion. He was informed that he was considered but not selected for promotion by the board. He was advised that if he remained eligible, he would be considered by the next mandatory selection board for his grade and category. 11. On 1 February 2006, the Chief, Office of Promotions, RC, HRC, notified the applicant that a DA Special Selection Board (SSB) was convened to consider SSB requests. The SSB examined the performance portion of his Official Military Personnel File. He was considered under the 2004 criteria, but, unfortunately, he was not selected for promotion by the SSB. He was advised that his nonselection by the SSB did not constitute an additional failure of selection, but was confirmation of the action of the regularly-convened board. He was further advised that the specific reasons for his nonselection were not known, as selection boards do not record their reasons for selection or nonselection. 12. HRC Orders P06-686016, dated 5 June 2006, show the applicant was retired and placed on the Retired List in the rank/grade of LTC/O-5 effective 6 June 2006. 13. The applicant's record is void of any evidence showing that his promotion recommendation was endorsed by the State, confirmed by the Senate, and subsequently approved by the President. His record is also void of any evidence showing that he submitted either an Inspector General (IG) or Equal Opportunity (EO) claim pertaining to his allegations of discrimination at any time. 14. The applicant and counsel provided the following information in support of the applicant's request. a. A letter from MG C____ G. R____, Retired, strongly supports the applicant's retroactive promotion to COL/O-6. MG R____ stated that as the applicant's senior rater from January through June 2003, he recalls discussing the recommendation for promotion he had submitted on the applicant with COL K____ in early 2004. MG R____ was very much in agreement with the recommended promotion. However, it was not until the last few days that he heard from the applicant that his promotion was never processed and that he had been retired as an LTC. The status of the applicant's situation never reached the MG in 2004 or while he subsequently served as a general officer in the TXARNG, including as The Adjutant General of Texas, and retired himself in 2009. MG R____ stated he believes the recommendation to promote the applicant, which was signed by his supervisor in December 2003, was never processed through the routine approval channels due to lost or misdirected documentation. From his recollection and perspective, it is clear that the applicant's promotion to COL/O-6 should have occurred in a timely manner. He believes that an administrative lapse or error in processing resulted in the loss or misplaced personnel action. b. Two letters from COL J____ S. S____, Retired, strongly support the applicant's retroactive promotion to COL/O-6 based upon the original request for a unit vacancy promotion which was correctly submitted by his immediate superior, the State Surgeon. The applicant was assigned to the COL/O-6 position effective 7 June 2003. COL S____ stated the applicant sought his guidance in his capacity as the Chief of the Joint Staff for The Adjutant General of the TXARNG during the period in question. He was well aware of the applicant's fine reputation and was concerned of an apparent intentional or personnel program flaw that resulted in his promotion packet being "lost" multiple times, redundant personnel requests for repeat paperwork submissions, and an obvious hostility by some senior officers toward his justly earned promotion. COL S____ contends that the applicant was a victim of a flawed and broken promotion system that had a possible history of some senior officers manipulating the system for the benefit of their friends. It became evident to the applicant from a conversation he had with a BG in the command chain that some senior officers wanted "to take care of" a friend and use the applicant's COL/O-6 position for that purpose, hence the lost promotion packets, lost OER's, redundant paperwork, etc. The applicant told him the BG said, "Good luck with your problem," and walked away. It was known that a Troop Command COL made the following discriminatory remark at a staff meeting, "There is that f___ing [Applicant] and his Mexican Mafia." COL S____ tasked the officer in charge of the personnel actions branch of the State headquarters to conduct an informal inquiry into this matter and he was not able to identify any specific cause for the apparent and inexplicable delays and misrouting of the applicant's promotion request. COL S____ stated he regrets not following up on this inquiry to ensure proper execution and, by his failure in regard, he may have added to the applicant's undeserved denial of promotion. c. A letter from Command Sergeant Major (CSM) R____ J____, Retired, attested that he had over 30 years of service and he, too, was a victim of discrimination due to his Hispanic descent and provided examples of the instances. In the applicant's case, he had to endure abuse and ridicule from multiple officers, but two COL's in particular. It was through their higher connections that they were able to manipulate promotions and discriminate against Hispanics without any retribution. There was a class-action lawsuit filed against some of these people; however, nothing was ever done to correct the situation. CSM J____ stated the applicant was one of the finest officers he ever served under and always put the Army and his Soldiers before himself. A fine officer like this should not have had to endure this type of discrimination because of his race. d. A letter from Master Sergeant (MSG) R____ A____, Retired, with 30 years of service, verified the directed bias and slander against the applicant and himself by senior TXARNG officers who frequently called them members of the "Mexican Mafia." He attested that he had faith in the National Guard leadership until the last 3 years of his military career. Those last 3 years were hell for him, the unit full-time staff, unit Soldiers, and especially the applicant. The applicant tried to deflect and put a stop to the harassment, slander, threats, and discrimination made by senior officers who were supposed to be leaders. Because of the applicant's actions in support of his Soldiers and his Mexican-American heritage, some of the senior officers at Troop Command, to include one or two general officers, directed bias toward the applicant and blocked his earned promotion to COL and numerous awards he had been recommended for by officers and enlisted Soldiers alike. MSG A____ stated that as the Deputy Commander of the Texas Medical Command, the applicant was already in the COL/O-6 position in June 2003, but an LTC and two COL's used illegal influence, harassment, and threats against the unit administrator to block the timely presentation of the promotion packet for the applicant's advancement to COL/O-6. All men and women felt it was a crime to have corrupt senior officers block the applicant's promotion based on bias against his Mexican-American family history and from pure jealousy of his leadership abilities. The applicant was praised by his fellow medical officers and Soldiers for his knowledge, leadership, management, and mission results, but he was driven away from the ARNG to the USAR by corruption, harassment, and bias against Mexican-Americans who stand for U.S. Army values. e. Fourteen pages of vignettes and synopses of statements rendered by witnesses support the applicant's promotion and his allegation of discrimination within the TXARNG. f. A Corpus Christi Caller Times article, dated 25 August 1993, entitled "Favoritism in the Guard," shows a State investigator attested that the TXNG has been plagued with a lack of leadership, favoritism in promotions and schooling, and discrimination against minorities. The investigator stated, "There is a problem with favoritism and there is what I would characterize as isolated incidents of discrimination in the lower ranks... But in the higher echelons...there is definitely a barrier against minorities. And when they filed complaints they were never addressed by the Texas National Guard because their equal opportunity system was nonexistent." It was determined that the TXNG was being run by a small group of officers in Austin who were more concerned about taking care of their friends and taking care of their positions. It was so bad that complaints and files would get lost and misplaced and there would be no follow-up action. g. A Corpus Christi Caller Times article, dated 24 September 1993, entitled "Guard Settlement Sought," shows the Governor of Texas asked her Secretary of State to work out a settlement with those who filed discrimination complaints against the TXNG. The Texas Secretary of State said he would meet with a San Antonio attorney who was representing hundreds of Guard members throughout the State. At least 400 Guard members had joined the class-action lawsuit at the time. 15. On 17 January 2014, an advisory opinion was rendered by Chief, Personnel Policy Division, NGB, wherein she recommended partial approval of the applicant's request. The advisory official noted that in accordance with National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), paragraph 8-1, "the promotion of officers in the ARNG is a function of the State." a. In the NGB initial inquiry requesting input relating to the applicant's request from the TXARNG, they indicated their office does not have any records relating to the applicant's concerns, nor were they aware of the grievances surrounding his promotion packet not being submitted or of his concerns regarding discrimination. Therefore, they were unable to provide additional input or documentation addressing the applicant's request. b. The applicant provided evidence showing his reassignment to a COL/O-6 position effective 7 June 2003 as well as being recommended for a unit vacancy promotion on 5 December 2003. TXARNG orders show the applicant's reassignment to the COL/O-6 position effective 7 June 2003. Additionally, documentation included in the case file shows the line item reflecting the availability of a COL/O-6 position as of 3 September 2003. The above actions imply that it was the intent of the Soldier's leadership for him to be promoted to COL, which suggests he met the eligibility criteria established in Army Regulation 135-155 (ARNG and USAR – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers). According to Army Regulation 135-155, Table 2-1 (Time in Grade (TIG) Requirements – Commissioned Officers, Other Than Commissioned Warrant Officers), the applicant was eligible for promotion as early as 5 December 2003 based upon his PED which was established when he was promoted to LTC/O-5. c. There are letters and excerpts from different individuals supporting the applicant's promotion to COL/O-6, his exceptional performance as an officer, and witnesses to alleged acts of discrimination and/or inappropriate comments. The documentation provided is not sworn statements and cannot be substantiated by NGB. The applicant indicated that he went to the State Inspector General's office but was unsuccessful in getting his concerns addressed. Supporting documentation has not been provided as to if an investigation was initiated, the outcome of that investigation, and/or a subsequent appeal based on the outcome. d. The applicant stated that his promotion packet was continually delayed for submission for various reasons. An email from the TXARNG, dated 30 December 2013, stated the applicant did not submit a complete promotion packet for consideration by the state Federal Recognition Board. The NGB Federal Recognition Section records do not show a promotion packet was ever submitted on behalf of the applicant. Additionally, according to the NGB DA Boards Section, the applicant was considered for promotion but was not selected by the 2004 board. The applicant should not have been considered by the DA board as his maximum TIG would not have been until 5 December 2007. His Federal recognition was withdrawn on 6 April 2004. e. In accordance with Army Regulation 15-185 (Army Board for Correction of Military Records), the case file does not show the applicant exhausted all administrative remedies to correct the alleged error or injustice relating to discrimination. NGB encourages the applicant to file a formal equal opportunity complaint specifying personal acts of discrimination directed toward him. Discrimination complaints involving military service or military membership in the National Guard must be filed in accordance with National Guard Regulation 600-22 (National Guard Military Discrimination Complaint System). f. In light of the evidence submitted by the applicant, consideration should be given to him being promoted to COL/O-6. He was assigned to a COL/O-6 position on 7 June 2003, he reached his minimum TIG requirement as of 5 December 2003, and documentation was submitted by his supervisor recommending him for promotion on 5 December 2003. This implies the intent of his unit's leadership to have the State initiate and submit the promotion packet for him to be promoted to COL/O-6. NGB recommends promoting the applicant to COL/O-6 effective 5 December 2003, the day he became eligible. As he was assigned to the COL/O-6 slot on 7 June 2003, it is feasible to recommend that his DOR be effective on this date. g. According to regulation, LTC's and above must satisfactorily serve in the higher grade for 3 years to receive retired pay in the higher grade. The applicant's discharge on 6 April 2004 would negate his ability to maintain the grade. A favorable decision would be applicable if the reason for the discharge was a result of the applicant not being promoted and/or the alleged acts of discrimination are found to have some validity affecting his decision. h. The State does not concur with this recommendation. i. The applicant was provided a copy of the advisory opinion and afforded an opportunity to respond. On 11 March 2014, the applicant concurred with the NGB advisory opinion. 16. Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and commissioned and warrant officers of the USAR. This regulation supports the objectives of the Army's officer promotion system that provides for career progression based on recognition of an officer's potential to serve in positions of increased responsibility. a. Paragraph 2-5a provides that in order to be eligible for consideration for promotion to the next higher grade, an ARNG or USAR officer must have continuously performed service on either the Reserve Active Status List or the Active Duty List (or a combination of both lists) during the 1-year period ending on the convening date of the promotion board and must meet the TIG requirements in table 2-1 or 2-3, as appropriate. b. Table 2-1 provides that for an officer to be promoted from the rank/grade of LTC/O-5 to COL/O-6, the minimum TIG requirement is 3 years and the maximum TIG is normally 5 years. However, it is announced annually and is subject to the needs of the Army. 17. Title 10 U.S. Code, section 12203(a), provides that appointments of reserve officers in commissioned grades above LTC/O-5 shall be made by the President, by and with the advice and consent of the Senate. 18. Title 10 U.S. Code, section 12771, provides 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 or she served satisfactorily as determined by the Secretary concerned in accordance with Title 10, U.S. Code, section 1370(d). 19. Title 10 U.S. Code, section 1370(d)(3)(A), provides that a Reserve officer in a grade above major, unless entitled to a higher grade under another provision of law, must have served satisfactorily in that grade for not less than 3 years. DISCUSSION AND CONCLUSIONS: 1. The evidence clearly shows: * he was promoted to LTC/O-5 on 5 December 2000, thereby establishing that as the date for calculating his PED for promotion to COL/O-6 * he was assigned to valid COL/O-6 position on 7 June 2003 * his supervisor recommended him for a unit vacancy promotion based upon occupying the position on 5 December 2003 2. Although it is evident that the applicant was fully qualified for promotion and his unit's leadership requested that the State take the necessary actions to promote him to COL/O-6, his record is void of any evidence showing that his promotion recommendation was endorsed by the State, confirmed by the Senate, and subsequently approved by the President. 3. The applicant was transferred to the USAR and subsequently retired in the rank/grade of LTC/O-5 on 6 June 2006. 4. The applicant and counsel contend that he was a victim of discrimination due to his Hispanic descent and provide a plethora of testimonies in support of this contention. Additionally, they provide two news articles which show allegations of discrimination were previously investigated and substantiated within the TXARNG over the years. However, his record is void of any evidence showing that he submitted either an IG or EO claim pertaining to his allegations of discrimination at any time. As a senior officer, he was certainly aware of the fact that he could have requested a formal investigation regarding the circumstances of his promotion packet, but failed to do so. 5. Title 10 U.S. Code, section 12203(a), provides that appointments of reserve officers in commissioned grades above LTC/O-5 shall be made by the President, by and with the advice and consent of the Senate. Therefore, contrary to the advisory opinion, in absence of evidence showing that the applicant's promotion recommendation was endorsed by the State, confirmed by the Senate, and subsequently approved by the President, it is not within the purview of the ABCMR to promote an officer to any rank/grade above LTC/O-5. 6. In view of the foregoing, there is no basis for granting the applicant's requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ 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. _____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20130014096 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130014096 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1