BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20160013367 BOARD VOTE: ___x______ __x_____ ___x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20160013367 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by reinstating his certificate of eligibility. ___________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. BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20160013367 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 correction of his military records to reinstate his certificate of eligibility (COE) for brigadier general (BG) or to permit him to appear before the 2016 General Officer (GO) Federal Recognition Board (FRB). 2. The applicant states the following is a chronological sequence of events leading up to denial of his COE by the Secretary of the Army (SECARMY) on 6 February 2015. a. In 2010, Major General (MG) A____ C. B____ was the Adjutant General of the State of Alabama. The Adjutant General (TAG) is a cabinet-level appointment by the Governor of a State to command the Military Department. The year 2010 was an election year for the State of Alabama and Governor  B____ R____ was the outgoing Governor and Governor Robert Bentley was the newly-elected Governor. In January of 2011, newly elected Governor Robert Bentley named MG P____ G. S____ as the new Adjutant General of Alabama. Section 31-2-72, Code of Alabama, and Amendment 89, Section 276, dictates the selection and approval of GOs and candidates for GOs for the State of Alabama. GO candidates are recommended by TAG and approved by the Governor, with advice and consent of the Alabama State Senate. b. National Guard Regulation (NGR) 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), paragraphs 1-8 through 11-13, direct, and the National Guard Bureau (NGB) GO Federal Recognition Guidebook establishes policy, rules, and procedures for Federal recognition of GOs and COE by the States. The point here being that GO and COE holders serve at the pleasure of the sitting Governor and current Adjutant General and the procedures for such submissions are clearly defined. Prior to his retirement in January 2011, MG A____ C. B____ nominated him for a COE for promotion to BG to the 2010 GO FRB. He was selected by the 2010 GO FRB and his COE was approved with Senate confirmation on 2 August 2011. This COE was effective until 2 August 2013. An approved COE is good for 2 years and is effective the date of Senate confirmation. An important consideration here is this COE was submitted by the previous Adjutant General but effective during the new Adjutant General's administration. c. In 2012 and 2013, MG P____ G. S____ placed GOs in positions based on his GO career management plan, and did not exercise his COE in 2012 or 2013 but chose to consider him for a future GO billet to which his career track was better suited. Therefore, MG P____ G. S____ submitted him to the 2014 GO FRB for a third COE. This historically has been allowed and does not require U.S. Senate confirmation again. His GO FRB packet was submitted to the NGB GO Management Office (GOMO) and he was subsequently recommended by the 2014 GO FRB in October 2014. At no time in the 2014 GO FRB process was his 2014 packet returned or otherwise disqualified. It is noteworthy that upon adjournment of the GO FRB, a State Adjutant General is not notified nor can NGB GOMO release selects or non-selects until the GO FRB process is completed through the SECARMY. This means the Alabama Army National Guard (ALARNG) would not know nor would expect to hear the results of his packet until February-March 2015 after the GO FRB adjourned in October 2014 due to the lengthy GO FRB process. d. In March 2015, Lieutenant Colonel (LTC) B____ R____ began to inquire into the applicant's COE packet as to where it was located, whether he was recommended or not recommended, and when the ALARNG TAG could expect disposition since he was very close to assigning and promoting him around December 2015. This date would allow the current sitting GO to gain close to minimum time in grade to retire and allow him to be promoted. The month of December 2015 would be after his current COE expired and if he were approved by the GO FRB as expected, this would not be an issue. In August 2015, in anticipation of his current COE expiring on 15 August 2015, the ALARNG G-1 staff inquired again about his COE. LTC F____ of NGB GOMO inquired with Department of the Army (DA) GOMO and forwarded the ALARNG a letter, signed by the then-SECARMY, notifying the ALARNG that he had been recommended for a COE by the 2014 GO FRB, but that he "had previously received two COEs and competed erroneously on this board in violation of NGR 600-100, paragraph 11-13(c)," and disapproved the applicant's board recommendation and forbade him for any future consideration. This notification was signed and dated by the SECARMY on 6 February 2015 but not transmitted to DA GOMO nor NGB GOMO until September 2015. e. There are two obvious problems with this ruling. The latency of the denial and subsequent transmittal to the service member through the chain of command took over 8 months, thereby negating his possibility for future promotion to BG, since it was after his current COE expired at no fault of his or the command, and a misinterpretation by The Judge Advocate General (TJAG) of the current NGR 600-100 according to NGB GOMO. When questioned by the ALARNG, NGB GOMO inquired with DA GOMO about this ruling from the SECARMY and it was relayed that DA TJAG office recommended disapproval of the GO FRB to the SECARMY based on NGR 600-100, paragraph 11-13c. According to NGB GOMO, this was a misinterpretation of the NGR and was taken out of the context and intent of the paragraphs. NGR 600-100, paragraph 11-7, describes the "limitations" of COE and at no time does it dictate a prohibition to reconsideration for an officer for multiple COEs. f. NGR 600-100, chapter 11, paragraph 11-13, defines the policy for reconsideration for Federal recognition in the same grade. Paragraph 11-13(a) addresses officers who are not recommended by the GO FRB for reasons other than medical and what remedies must occur before they can reappear before a subsequent GO FRB board. Paragraph 11-13(b) addresses officers who are not recommended for medical reasons and what remedies must occur before appearing before a subsequent GO FRB. Paragraph 11-13(c) simply states no candidate may appear at the GO FRB more than twice. NGB GOMO maintains that this paragraph is in direct correlation to subparagraphs (a) and (b), meaning that in those categories of not recommended for medical reasons or reasons other than medical, a candidate cannot appear before a GO FRB more than twice. It does not mean those who have been recommended cannot appear before the GO FRB more than twice. Preceding paragraphs of NGR 600-100, chapter 11, do not prohibit candidates who appear before a GO FRB and are recommended for promotion from appearing multiple times nor has this been the norm at NGB GOMO. Also noteworthy is how his packet advanced past the numerous pre-board checks and GO FRB without this being noted before it arrived at SECARMY. g. Notwithstanding the misinterpretation and subsequent ruling by DA TJAG to the SECARMY, if the chain of command had been informed in a timely manner, the State Adjutant General could have made changes to the ARNG Career Management plan and provided the applicant an opportunity to exercise the current COE before it expired in August 2015. The latency of receiving the SECARMY decision letter, dated 6 February 2015, until September 2015 is highly unusual and negated this possibility. Secondly, had the regulation relating to his appearance before the board not been misinterpreted or misapplied, he would have been promoted to BG in December of 2015 per TAG plan. His situation can be remedied by two options which are outlined by priority: (1) reverse the denial based on administrative error and reinstate his COE to allow the prescribed 2 years of eligibility or mandatory removal date (MRD), whichever comes first, as stated in NGR 600-100, chapter 11; and (2) permit him to appear before the 2016 GO FRB as NGR 600-100, chapter 11, allows. 3. The applicant provides: * Section 31-2-72, GO of the line * amendment of Sections 272, 273, and 274 * extract of NGR 600-100 * ARNG FRB Process * SECARMY decision, dated 6 February 2015 CONSIDERATION OF EVIDENCE: 1. Having prior enlisted service, the applicant was appointed as a commissioned officer of the ALARNG and executed an oath of office on 28 June 1987. 2. He served in a variety of stateside or overseas assignments, including Germany, Iraq, and Afghanistan (8 December 2009 to 21 October 2010). He was promoted to LTC on 30 September 2003 and to COL on 20 June 2008. 3. In August 1999, the ALARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 4. Around March 2011, he was assigned as Brigade Commander, 122nd Troop Support Command, Selma, AL, and he was reassigned to the position of Deputy Commander, 135th Sustainment Command, Birmingham, AL, around April 2014. 5. Although not available for review, it appears the applicant was considered by the October 2014 ARNG of the United States (ARNGUS) GO FRB and recommended for Federal recognition in the grade of BG. 6. On 6 February 2015, by memorandum to the Chief, NGB, the SECARMY ordered the applicant's removal from the GO FRB. The SECARMY stated, "The October Army National Guard of the United States (ARNGUS) General Officer Federal Recognition Board (GOFRB) recommended [Applicant] for Federal recognition in the grade of brigadier general. However, [Applicant] had previously received two certificates of eligibility and competed erroneously on this board in violation of NGR 600-100, paragraph 11-13.c. Therefore, I disapprove the board's recommendation of this officer. A subsequent ARNGUS GOFRB may not consider this officer." 7. An advisory opinion was obtained from the Chief, GOMO, in the processing of this case. The advisory official restated the applicant's request for reinstatement of his COE for BG and permission to appear before the 2016 GO FRB. NGB GOMO recommends approval. a. GOMO determined there are two paths under which officers may meet a GO FRB: position vacancy (PV) and COE. Officers who meet the board for PV encumber a GO billet at the time of the board. Officers meeting the board for a COE do not encumber a GO billet and are able to meet the board based upon a projected vacancy. Once a COE is awarded, it is good for 2 years. If an officer does not find a GO billet within 2 years, the COE expires and the officer must meet a subsequent board to obtain a new COE. b. The applicant met the 2010 and 2012 GO FRB for COEs. After the applicant did not execute either COE, he met the 2014 GO FRB for a third COE. While the board results were processing through the Department of the Army, someone discovered the applicant was going for his third COE. An Army legal review then concluded that NGR 600-100 precluded an officer from meeting a GO FRB three times, regardless of whether the officer was being considered for a PV or a COE. As a result, the applicant's nomination was removed from the GO FRB scroll and the SECARMY declined to submit his nomination package based upon this interpretation of NGR 600-100. c. There was a substantial delay in notifying NGB of the status of the applicant's nomination. By the time notification was made, the applicant's second COE expired. When notification was made to his Adjutant General, he indicated that, had he known sooner, he would have changed his GO force structure plan and executed the applicant's COE prior to its expiration. d. After notifying the officer's Adjutant General, NGB GOMO began a review of NGR 600-100. NGB GOMO determined that, by its terms, the provision in NGR 600-100 that Army OTJAG relied upon in the applicant's case applied to officers being considered for PVs, not COEs. The logic for this policy determination is threefold. First, the section in NGR 600-100 that deals with COEs does not limit the number of times an officer may meet a GO FRB. Second, there is no such prohibition in the Federal recognition statute, Title 32, U.S. Code, section 307. Third, officers found qualified by the GO FRB the first or second time who are nominated for a PV are extended Federal recognition so there is no need to meet a subsequent board. Officers who are twice found unqualified for a PV, however, are properly precluded from meeting future GO FRBs as a matter of policy because it is unlikely the officer will be found qualified upon a third review. The same justification does not exist to preclude subsequent GO FRB consideration for an officer who has been twice found qualified for a COE. There is simply no rational basis to limit the number of times an officer may be considered for a COE by a GO FRB if the officer otherwise meets the requirements to appear before the board. e. After reviewing the applicant's submission, and taking into consideration the language in NGR 600-100, GOMO believes the action taken to deny the applicant's request for a third COE and preclude him from meeting future GO FRBs was made in error. GOMO recommends approval of his request to reinstate his COE. f. With respect to the applicant's request to meet the 2016 GO FRB, the applicant's Adjutant General requested a waiver to NGR 600-100. His request was denied, however, and the 2016 GO FRB took place on 24 October 2016. g. The ALARNG concurs with this recommendation. 7. The applicant responded to the advisory opinion and indicated he did not wish to add additional comments. The advisory opinion further solidifies his case and he requests favorable consideration by the Board. REFERENCES: 1. Title 32, U.S. Code, section 307, provides that: a. To be eligible for Federal recognition as an officer of the National Guard, a person must: (1) receive an appointment with a view to filling a vacancy in a Federally recognized unit or organization of the National Guard; (2) have the qualifications prescribed by the Secretary concerned for the grade, branch, position, and type of unit or organization involved; and (3) except as provided in subsections (d) and (e) of this section, pass an examination for physical, moral, and professional fitness to be prescribed by the President, and subscribe to the oath of office prescribed by section 312 of this title. b. The examination prescribed by subsection (a)(1) shall be conducted, for the ARNG, by a board of three commissioned officers designated by the SECARMY from members of the Regular Army or the ARNGUS, or both, and for the Air National Guard, by a board of three commissioned officers designated by the Secretary of the Air Force from members of the Regular Air Force or the Air National Guard of the United States, or both; and (2) may be held before original appointment or promotion. c. If such a board finds a person qualified, the Chief of NGB may issue to him a COE for Federal recognition for the office for which he was found qualified. If he is originally appointed or promoted within 2 years to that office, he is entitled to Federal recognition without further examination, except as to physical condition. d. Subject to subsection (a)(1) and (2), and to such physical examination as may be prescribed, Federal recognition shall be extended to each officer of the Army Reserve who has qualified for appointment as an officer of the ARNG in his Reserve grade. Similarly, Federal recognition shall be extended to each officer of the Air Force Reserve who has qualified for appointment as an officer of the Air National Guard. Federal recognition extended under this subsection is effective from the date of appointment in the ARNG or the Air National Guard, as the case may be. e. Subject to subsection (a)(1) and (2), Federal recognition shall be extended to each officer of the Air Force Reserve who is appointed in a commissioned grade in the Air National Guard to fill a vacancy, if on the date on which he is appointed his Reserve grade is the same as the grade in which he is appointed or his name is on a recommended list for promotion to that Reserve grade. f. Federal recognition extended under subsection (d) or (e) is effective from the date of appointment in the ARNG or the Air National Guard, as the case may be. 2. NGR 600-100 provides procedures for processing all applications for Federal recognition. a. Paragraph 11-4 (Prerequisites for Consideration for Federal Recognition in GO Grades) states that in order to be considered for Federal recognition in a GO grade, the candidates must meet several requirements, as stated in paragraphs 11-4a through 11-4m. b. Paragraph 11-6 (Prerequisites for Consideration for COE for Federal Recognition to or within GO Grades) states a candidate for COE for Federal recognition in GO grade must meet all requirements for consideration for Federal recognition in the grade and branch authorized for the position sought, as prescribed by paragraph 11-4 of this regulation, except for holding a State appointment in the new grade or branch and assignment to a GO position. c. Paragraph 11-7 (Limitations of COE) states a COE for GOs is effective for 2 years from the date of issue, unless otherwise prohibited. The officer must remain otherwise qualified. The COE becomes invalid when the officer reaches mandatory removal date and has not been assigned to a Federally recognized GO position. Receipt of an extension to the mandatory removal date for essentiality or to qualify for a civil service retirement annuity will not invalidate an existing COE. d. Paragraph 11-11(Granting of Federal Recognition) states Federal recognition will be extended by the Chief, NGB, to those officers found qualified by the board and approved by the SECARMY 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. Recess appointments will be effective on the date approved by the President or, if no vacancies exist at that time, on the date such vacancies occur. e. Paragraph 11-13 (Reconsideration for Federal Recognition in the Same Grade) states 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 rejected initially no longer exists and the officer can meet all of the other requirements specified for initial consideration. A candidate for Federal recognition in a GO grade who is not recommended for Federal recognition upon initial consideration by a board due to medical disqualification may be authorized to be considered by a subsequent board when circumstances specified in paragraph 11-4 of this regulation exist. No candidate for Federal recognition in a GO grade, other than for the position of State Adjutant General, may be considered by a board more than twice for the same grade. State Adjutants General and Assistant Adjutants General, previously Federally recognized as GOs, Adjutant General Corps, who meet the eligibility criteria for line GO may be reconsidered for Federal recognition as GOs of the line in their current grade while serving in their current position. DISCUSSION: 1. There are two paths under which officers may meet a GO FRB: PV and COE. Officers who meet the board for PV encumber a GO billet at the time of the board. Officers who meet the board for a COE do not encumber a GO billet and are able to meet the board based upon a projected vacancy. Once a COE is awarded, it is good for 2 years. If an officer does not find a GO billet within 2 years, the COE expires and an officer must meet a subsequent board to obtain a new COE. 2. Here, the applicant met the 2010 and 2012 GO FRB for COEs but did not execute either COE. He also met the 2014 GO FRB for a third COE. While the board results were processing, it was determined that the applicant was going for his third COE. An Army legal review then concluded that NGR 600-100 precluded an officer from meeting a GO FRB three times, regardless of whether the officer was being considered for a PV or a COE. As a result, the applicant's nomination was removed from the GO FRB scroll, and the SECARMY declined to submit his nomination package. 3. There was a substantial delay in notifying the NGB of the status of the applicant's nomination (February 2015 to September 2015). By the time notification was made, his second COE had expired. When notification was made to his State Adjutant General, TAG indicated that, had he known sooner, he would have changed his State GO force structure plan and executed the applicant's COE prior to its expiration. 4. NGB GOMO reviewed the governing regulation (NGR 600-100) and determined the provision in NGR 600-100 that Army OTJAG relied upon in the applicant's case applied to officers being considered for PVs, not COEs. First, the section in NGR 600-100 that relates to COEs does not limit the number of times an officer may meet a GO FRB. Second, there is no such prohibition in the Federal recognition statute, Title 32, U.S. Code, section 307. Third, officers found qualified by the GO FRB the first or second time who are nominated for a PV are extended Federal recognition so there is no need to meet a subsequent board. 5. Officers who are twice found unqualified for a PV, however, are properly precluded from meeting future GO FRBs as a matter of policy because it is unlikely the officer will be found qualified upon a third review. The same justification does not exist to preclude subsequent GO FRB consideration for an officer who has been twice found qualified for a COE. There is no rational basis to limit the number of times an officer may be considered for a COE by a GO FRB if the officer otherwise meets the requirements to appear before the board. 6. It appears the actions taken to deny the applicant's request for a third COE and precluding him from meeting future GO FRBs were made in error. The Board has the option to reinstate his COE as a one-time exception. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013367 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013367 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2