IN THE CASE OF: BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20150005003 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20150005003 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20150005003 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 an adjustment of his dates of Federal recognition to brigadier general (BG) and major general (MG) or referral to a Special Selection Board (SSB) if relief is not granted. The applicant requests as an alternative, compensation in the form of all pay, retirement, and all other rights, privileges, and benefits commensurate with the rank to which he would have been entitled. 2. The applicant states: a. His appeal is for a redress of grievances suffered as a result of the lack of due process and numerous administrative errors made as a result of two flawed Federal recognition processes to general officer (GO). b. The indefensible delay of over 3 years in processing his Governor's recommendations for promotions to BG and subsequently to MG were the result of incidents which he had no control over and for which he was neither a part of or, in the latter case, was the victim of a blanket anonymous complaint filed against him and several of his staff officers, which was found unsubstantiated. The evidence clearly shows that unjustifiable administrative delays/errors or violations of law or regulations in his promotion process have caused much injustice, not only to him but to his family as well. c. This Board has the jurisdiction and the authority to address administrative errors and remedy cases of injustice as a result of a lack of due process, administrative error, or violation of law or regulations. This appeal is not about the issue of promotion. This appeal is based on the right to have an unbiased board that does no harm as a result of their actions, or as in the case, inaction. A board may unknowingly be biased by administrative error or violations of law or regulations because it does not have all the documents and information it should have had to make a proper promotion decision. The exhibits in this case clearly support this conclusion. d. As the General Officer Management Office (GOMO) explained to him, the rule for promotion boards in 2009 was that a flagging action against one officer being considered by the board automatically held up every other officer on the list. He understands this procedure has been corrected (indicative in itself), but he and those officers who were on the list for promotion were clearly and unfairly administratively denied timely competing for promotion and therefore deserve recompense. This injury is separate and apart from a promotion issue. Candidates for GO promotions in these circumstances are unfairly punished for an act by someone else when the alleged wrong has not been substantiated. This procedure clearly violates due process and is injurious to the officers who lose time in grade, compensation, and benefits merely by the bad luck of being on the same list. e. In regard to the delay in his promotion to MG due to the absence of a recent officer evaluation report (OER) for review by the January 2012 MG Board, the State Adjutants General does not receive OERs. Instead, they receive Governors' recommendations. Not considering him for promotion in January 2012 because he did not have a recent OER clearly violated Army Regulation 623-3 (Evaluation Reporting System), table H-1 (Rules for Establishing Rating Chains for GOs), which shows for State Adjutants General: "None," with the following note: "No OER or NCOER [noncommissioned officer evaluation report] will be rendered for a State AG [Adjutant General] unless a Governor of the State or Territory – or in the case of the Commanding General of the District of Columbia National Guard, the Secretary of the Army – desires to write an OER or NCOER." This Army regulation is clearly meant to recognize the Constitutional issues involved in promotion of State Adjutants General and the authority of the Governors under Article I, Section 8, and the 10th Amendment. This egregious error, lack of due process, and violation of regulations is verified by the fact that the two State Adjutants General who did not have recent OERs were not selected while the other newly appointed State Adjutants General with recent OERs (but years less of experience) were promoted. The letter from his Governor nominating him was available, but it was not provided to the board. Finally, no National Guard members were allowed to sit in on the board. An MG admitted the process was unjust. These practices have been independently reviewed and validated as procedurally deficient by no less than the Secretary of the Army in his 18 October 2012 letter to the Governor of Maryland. f. Secondly, a Department of the Army Inspector General complaint was filed against him during the timeframe of his promotion to MG. After a year in the investigative process and another year awaiting a legal opinion and review, the allegations against him were deemed not substantiated in February 2014. However, the evidence shows the National Guard Bureau (NGB) GOMO slowed the review of his case and unfairly made his case a low priority. This intentional delay of his promotion (as this time he was passed over by the board, even with a recent OER) is further evidence of manifest injustice and a lack of due process in his case. It may even constitute misconduct, as the Army recognizes and substantiates complaints for undue delay in completions of OERs, for example. He questions whether the same standard should be held for a GO board and investigative review. g. Our system of checks and balances does not guarantee promotion. But procedural due process has always been the cornerstone of our military promotion process. This includes fairness, the right to be heard, the right to have all of one's pertinent records before board proceedings, and the right to timeliness in the process. This is to avoid the punishment delay causes because of the importance of seniority in military ranks. This Board should use its authority to correct these wrongs and compensate for these procedural and administrative due process errors. h. He requests an adjustment of his dates of rank as the Board may see fit given the evidence, administrative mistakes, due process errors, and failure to present all the relevant documents to the GO board as required by Army regulations. i. If he cannot be made whole by amending his promotion to BG and to MG, he requests compensation for the procedural due process and administrative errors set forth above concerning the 2009 GO Board and for the unfair time delays in the investigative process as evidenced by the final decision of "unsubstantiated" on the claims made against him after the January 2012 MG Board, for which he had to submit to a second GO board in November 2012. The denial of due process and administrative errors that delayed his promotions through this entire process was over 3 years. The administrative errors, due process errors, and violations of regulations were unjustified and he requests the benefits commensurate with the rank to which he would have been entitled. j. If the Board lacks the jurisdiction to grant his requested relief, he requests referral to an SSB or the appropriate forum with a recommendation to provide his requested relief. 3. The applicant provides a self-authored memorandum, dated 10 March 2015, with six enclosures as outlined on page 4 of the memorandum. CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving in the Army National Guard (ARNG) in the rank of MG. 2. In February 2009, he was nominated for Federal recognition to BG. 3. Missouri ARNG Orders 069-058, dated 10 March 2009, promoted him to BG effective 22 January 2009. 4. NGB Special Order GO-273-03, dated 30 September 2010, extended Federal recognition and appointed him as a Reserve of the Army in the rank of BG effective 29 September 2010. 5. On 4 October 2010, the Chief, NGB, approved the applicant's Governor's request authoring the applicant to wear the insignia of MG. 6. Missouri ARNG Orders 281-119, dated 8 October 2010, promoted him to MG effective 4 October 2010. 7. In February 2011, he was nominated for Federal recognition to MG. 8. On 1 November 2011, he was nominated for Federal recognition to MG. 9. NGB Special Order GO-004-01, dated 4 January 2012, extended Federal recognition and appointed him as a Reserve of the Army in the grade of BG, line type, effective 22 December 2011. 10. In September 2012, he was again nominated for Federal recognition to MG. 11. He provided a letter from the Secretary of the Army to a Member of Congress, dated 18 October 2012, which states the December 2008 ARNG General Officer Federal Recognition Board (GOFRB) took an excessive period to process due to recurring allegations of impropriety made against certain officers recommended for Federal recognition. Each of the allegations delayed the administrative processing of the nominations within the Department of Defense. 12. NGB Special Order GO-213-01, dated 1 August 2014, extended Federal recognition and appointed him as a Reserve of the Army in the rank of MG, line type, effective 31 July 2014. 13. NGB Special Order GO-144-01, dated 23 May 2016, revoked NGB Special Order GO-213-01, dated 1 August 2014. 14. NGB Special Order GO-144-02, dated 23 May 2016, extended Federal recognition and appointed him as a Reserve of the Army in the rank of MG, Adjutant General Corps (AGC), and effective 17 April 2013. 15. In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, on 16 June 2016. The NGB recommends partial approval of the applicant's request. The opinion stated: a. This office determines, in close coordination with the ARNG GO Management Branch and ARNG Judge Advocate General's (JAG) Office, there are two qualifications for which an officer meets a GOFRB: GO of the line (GOL) and AGC. Officers who possess a GOL qualification may serve in line or AGC positions in and out of their State, but their board packets are scrutinized more closely during a GOFRB. Officers who possess an AGC qualification may only serve as State Adjutants General or Assistant Adjutants General and their packets face a lower threshold of scrutiny by the GOFRB. b. The applicant first met a GOFRB in the fall of 2004. He was nominated for a certificate of eligibility for BG with a GOL qualification; however, he was not recommended by the GOFRB. c. In January 2009, he was appointed as the State Adjutant General by the Governor of Missouri. He was subsequently nominated to meet the June 2009 GOFRB for BG with an AGC qualification. This GOFRB recommended him; he was confirmed by the Senate and extended Federal recognition as a BG on 29 September 2010. d. While 15 months is above the average processing time to receive Senate confirmation, the delay was relatively moderate; in fact, officers recommended by the June 2009 GOFRB were confirmed before officers recommended by the October 2008 GOFRB. Subsequently, he successfully met the October 2011 GOFRB for a line qualification in the rank of BG. e. In January 2012, the Secretary of the Army convened an out-of-cycle GOFRB. He met the January 2012 GOFRB for MG with a GOL qualification; however, he was not recommended by the board. f. The NGB GOMO requested authorization from the Department of the Army to notify the applicant of the results of the GOFRB early so he could prepare to meet the normally scheduled GOFRB in October 2012. This was approved and he met the October 2012 GOFRB for MG for an AGC qualification. g. He was recommended by the board and received Federal recognition as an MG upon Senate confirmation on 31 July 2014. h. While researching the circumstances involving the applicant's request, the NGB GOMO discovered that two errors were made involving the applicant's Federal recognition order. (1) First, his nomination packet was delayed due to unsubstantiated allegations made against him. When an officer's nomination to GO is delayed, NGB GOMO typically determines the date the officer would have been confirmed if not for the allegations that resulted in delay of Federal recognition, pursuant to Title 10, U.S. Code, section 14311(b), which would have been 17 April 2013 in this situation. The NGB GOMO would then offer to make the effective date of the Federal recognition order the day the officer would have been confirmed, but for the unsubstantiated allegations. In his case, that did not happen. (2) The second error was the office that processed his Federal recognition order awarded him a GOL qualification. They failed to account for the fact that he met and was recommended for an AGC qualification by the October 2012 GOFRB. i. With respect to the applicant's request to be referred to an SSB if relief is not granted, Title 10, U.S. Code, section 14502, authorizes the Secretary of the Army to convene an SSB for an officer or former officer who was not considered by a Department of the Army mandatory promotion board convened pursuant to Title 10, U.S. Code, section 14101(a), due to administrative error. Because National Guard GOFRBs are convened pursuant to Title 32, U.S. Code, section 307, and are not Department of the Army mandatory boards, it is their understanding that the Secretary's SSB authority under Title 10, U.S. Code, section 14502, does not pertain to such boards. j. Additionally, after reviewing the applicant's submission, the NGB recommends denial of his request to backdate his date of Federal recognition to BG and further deny his request for referral to an SSB. After determining the two errors in his MG Federal recognition order, the NGB GOMO will take immediate remedial action to correct his date of Federal recognition to MG. The NGB GOMO will also correct the qualification of his Federal recognition to MG from GOL to AGC. Should the Army Board for Correction of Military Records direct additional remedial action, NGB GOMO will take immediate action at the Board's direction. k. The NGB recommends award of back pay for duty the applicant performed from the time he should have received Federal recognition as an MG until he actually began receiving pay as an MG. l. The Missouri ARNG provided no input regarding this opinion. 16. A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal. On 23 June 2016, he responded and stated: a. The GOMO's response does not address the issues raised regarding the failure of due process of the special GO Board of January 2012 as set forth in his appeal, particularly the procedural violations of Army Regulation 623-3, table H-1, for State Adjutants General. As a consequence, his grievances regarding this Board would be moot if the January 2012 MG Board had been properly conducted. Therefore, he requests redress of the procedural deficiencies of the January 2012 Board per his petition as the deficiencies were validated by the Secretary of the Army in a letter, dated 18 October 2012. b. Ironically, during his appeal, an unfortunate administrative error not of his own making has taken place again. He was originally granted GOL status as an MG effective 31 July 2014, this order has now been revoked by GOMO as of 23 May 2016. If he had known this order was in error, he would have applied to the fall GO Board in 2014 or 2015 for confirmation of GOL status. Unfortunately, he missed his opportunity to have his GOL status restored by a GO Board. His Governor's term ends this year by law; therefore, he will not have an opportunity to have his GOL status restored before the Governor leaves office. He was GOL qualified effective 22 December 2011 as a BG in the same position he holds today with almost 6 more years of experience. In light of all the unfortunate circumstances and events he has had to deal with regarding promotion boards, which were not of his own making, restoring his GOL qualification would do much to alleviate these many years of angst, as he only requested backdating the effective date of his promotion in his appeal. Changing the GOL status to AGC exceeds his originally requested relief beyond the scope of his request, and does not provide him adequate due process to have his GOL status restored given the facts argued in his original case and in this letter. He requests redress regarding this issue. c. During this entire process, he has felt more than just a little discrimination because of his JAG Corps Branch. It seems as if there is a singular mindset of a JAG officer only being a lawyer without reviewing his or her entire record of service and command experience. He served as an enlisted combat engineer before he attended law school. After graduation, he chose to join the JAG Corps. Even though he was a member of the JAG Corps, he also wished to serve in other fields. He was given a special waiver by The Judge Advocate General to serve in non-JAG positions, including command at the regimental level and Deputy Chief of Staff of the Missouri ARNG. d. He attended the Army War College and every required school and senior leader course. He served in GO positions for over 7 1/2 years as the Missouri Adjutant General, commanding over 12,200 Army, Air, and Joint personnel on a daily basis. Counting his command time as a colonel commander, he has more than three times more command experience than an MG on the line has in command of a division during a normal 3-year tour. He was granted GOL status based on his record by the October 2011 GO Board. He has worked diligently to ensure he has gone above and beyond the standards of education and experience to meet GOL requirements. This is also supported by his appointment to the Army General Staff by the Secretary of the Army, appointment to the Army Reserve Forces Policy Committee, and appointment to the NGB Security Cooperation GO Advisory Council. e. In summation, he requests a review of the NGB's suggested promotion date, but he concurs with NGB's other recommendations regarding back pay and other entitlements. However, if the NGB's recommendations are accepted, he requests: (1) that the procedures of future GO promotion boards for Reserve GOs be confirmed per the Secretary of the Army's letter of 18 October 2012 so that what transpired in his case regarding the January 2012 GOFRB does not happen to another officer in the future; (2) restoration to GOL status due to the Missouri Governor's administration term ending in January 2017, the administrative errors, including most recently and revoking his GOL status 2 years later with no due process recourse, and considering his many years of experience; and (3) restoration of all the rights and privileges he lost by denial of due process, violation of regulations, and administrative errors as pleaded in his original petition through the Board's equity power. REFERENCES: 1. National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), chapter 11 (General Officers), states: a. The appointment and promotion of ARNG officers to and within GO grades are functions of the State concerned, as distinguished from the Federal recognition of such appointment or promotion. b. A State Adjutant General may be appointed and serve in that capacity without Federal recognition. c. No officer will be Federally recognized to serve in that position authorized for the State Adjutant General other than the officer who is appointed as the State Adjutant General and performs the duties of that position. d. State Adjutants General may be Federally recognized in the rank authorized by the respective State code, but not to exceed the rank of MG, subject to the following: (1) Commissioned officers or former commissioned officers of the Armed Forces who have served in the rank of BG for a minimum of 1 year and are otherwise qualified may, as State Adjutants General, be considered for Federal recognition in the rank of MG. (2) Commissioned officers or former commissioned officers of the Armed Forces who have served in the rank of colonel for a minimum of 1 year and are otherwise qualified may, as State Adjutants General, be considered for Federal recognition in the rank of BG. (3) Commissioned officers or former commissioned officers of the Armed Forces who have attained the grade of lieutenant colonel or below may, upon appointment as State Adjutants General, be considered for Federal recognition in the highest Federally recognized grade previously held. (4) To be considered for Federal recognition in general officer grades, State Adjutants General must meet the requirements for the grade sought as prescribed by in paragraph 11-4. (5) Upon termination of appointment as a State Adjutant General, an officer who has so served will be eligible for Federal recognition in the highest grade and in the branch for which he/she is otherwise qualified. e. Federal recognition will be extended by the Chief, NGB, to those officers found qualified by the board and approved by the Secretary of the Army after Senate confirmation of appointment. The effective date of Federal recognition will be the date of Senate confirmation if vacancies exist within the statutory limitation prescribed by Title 10, U.S. Code, section 3218, or, if no vacancies exist at that time, on the date such vacancies occur. f. A candidate for Federal recognition in a GO grade who is not recommended for Federal recognition upon initial consideration by a board for any reason, other than medical disqualification, may be authorized to be considered by a subsequent board, provided evidence clearly indicates the deficiency for which he or she was initially rejected no longer exists and the officer can meet all of the other requirements specified for initial consideration. g. State Adjutants General and State Assistant Adjutants General, previously Federally recognized as GOs, AGC, who meet the eligibility criteria for line GO may be reconsidered for Federal recognition as GOLs in their current grade while serving in their current positions. h. State Adjutants General and State Assistant Adjutants General who are Federally recognized in GO grades, AGC, are not eligible for reassignment to line positions in that grade. i. Federally recognized GOLs may be reassigned to State Adjutant General or State Assistant Adjutant General positions without changing the grade or branch. j. Reassignment of GOs serving in State Adjutant General or State Assistant Adjutant General positions, who are not Federally recognized in the AGC to a line position must be approved by the Chief, NGB, so as not to exceed statutory limitations. Mandatory removal dates must also be recalculated. No reassignments to line positions will be made without approval by the Chief, NGB. 2. Title 10, U.S. Code, section 14502, authorizes the Secretary of the Army to convene an SSB for an officer or former officer who was not considered, due to administrative error, by a Department of the Army mandatory promotion board convened pursuant to Title 10, U.S. Code, section 14101(a). 3. Title 32, U.S. Code, section 307, provides for National Guard officer Federal Recognition Boards. DISCUSSION: 1. The applicant contends that failure to consider him for promotion in January 2012 because he did not have a recent OER clearly violated Army Regulation 623-3, table H-1, because State Adjutants General do not receive OERs. Instead, they receive Governors' recommendations. However, there is no evidence of record and he provided no evidence showing his promotion to MG was delayed due to the lack of a recent OER. 2. He contends this egregious error, a lack of due process, and violation of regulations are procedural deficiencies that were validated by the Secretary of the Army in his letter of 18 October 2012. The Secretary of the Army's letter stating the December 2008 ARNG GOFRB took an excessive period to process due to recurring allegations of impropriety made against certain officers recommended for Federal recognition and that each of the allegations delayed the administrative processing of the nominations within the Department of Defense was noted. However, the Secretary of the Army's acknowledgement of and explanation for the delay do not substantiate any violation of Army regulations or due process. The long-standing procedure for processing and approving promotion recommendations did, in fact, hold the list until issues were resolved and then presented the list as a whole for approval. This process is an allowable exercise of government discretion. The applicant was not singled out or treated inequitably from others similarly situated. The Army’s change of a procedural process does not render the application of the prior process improper or inequitable. 3. He contends the evidence shows the NGB GOMO slowed the review of his case for promotion to MG and unfairly made his case a low priority because an Inspector General complaint was made against him. The allegations against him were deemed not substantiated in February 2014. He states this intentional delay of his promotion is further evidence of manifest injustice and a lack of due process in his case. However, the aforementioned letter from the Secretary of the Army clearly explained the reason for the delay was due to recurring allegations of impropriety made against certain officers recommended for Federal recognition. There is no evidence indicating the NGB GOMO unfairly made his case a low priority. He was recommended by the GOFRB and received Federal recognition as an MG upon Senate confirmation on 31 July 2014. 4. The evidence of record shows his GOL status was amended in 2016 from 31 July 2014 to AGC effective 17 April 2013. He contends that changing the GOL status to AGC exceeds his originally requested relief, is beyond the scope of his request, and does not provide him with adequate due process to have his GOL status restored. The governing regulation states the appointment and promotion of ARNG officers to and within GO grades are functions of the State concerned, as distinguished from the Federal recognition of such appointment or promotion. 5. The evidence shows: a. In January 2009, he was appointed as the State Adjutant General by the Governor of Missouri. He was subsequently nominated to meet the 2009 GOFRB for BG with an AGC qualification. The GOFRB recommended him for promotion and he was confirmed by the Senate and extended Federal recognition as a BG on 29 September 2010. b. He successfully met the October 2011 GOFRB for a line qualification in the rank of BG. c. In January 2012, he met the GOFRB for MG with a GOL qualification, but he was not recommended by the board. d. He met the October 2012 GOFRB for MG for an AGC qualification. e. He was recommended by the GOFRB and received Federal recognition as an MG upon Senate confirmation on 31 July 2014. f. While researching the circumstances involved with the applicant's request, the NGB GOMO discovered two errors were made involving his Federal recognition orders. First, his nomination packet was delayed due to unsubstantiated allegations made against him. Second, the office that processed his Federal recognition order awarded him a GOL qualification. They failed to account for the fact that he met and was recommended by the October 2012 GOFRB for AGC qualification. g. In May 2016, the NGB corrected his date of Federal recognition to MG and the qualification of his Federal recognition to MG from GOL to AGC effective 17 April 2013. 6. The delay in processing time to receive Senate confirmation for Federal recognition as a BG was noted. However, granting Federal recognition is a function of NGB. The NGB advisory official stated the delay was relatively moderate. There appears to be no error or injustice. 7. His request for referral to an SSB was noted. However, the law only authorizes the Secretary of the Army to convene an SSB for an officer or former officer who was not considered by a Department of the Army mandatory promotion board due to administrative error. National Guard GO Federal Recognition Boards are not Department of the Army mandatory boards. He does not meet the eligibility criteria for consideration by an SSB. 8. Based on the corrective action taken by NGB as noted in paragraph 5g above, no further Board action is required for this portion of his request. Back pay for duty performed from the time he should have received Federal recognition as an MG until the time he began receiving pay as an MG will naturally flow from the NGB correction. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005003 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005003 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2