IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150010252 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: 26 July 2016 DOCKET NUMBER: AR20150010252 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 to amend the decision of the ABCMR set forth in Docket Number AR20130014096, dated 11 June 2014. _____________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: 26 July 2016 DOCKET NUMBER: AR20150010252 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 reconsideration of his request for 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 in effect: a. His promotion to COL should be implemented effective 5 December 2003 as recommended by the findings of the National Guard Bureau (NGB) on his initial case. He was also recommended for promotion by his last commander, his last senior rater, and his last three officer evaluation reports (OER) which were endorsed by general officers. b. The promotion to COL was within compliance of regulations. Upon completion of his ARNG service, he should have been retired as a COL in keeping with the Reserve Officer Personnel Management Act (ROPMA), section I, paragraph 1-3b, having held the rank of COL for at least 6 months and retired upon reaching maximum age of 60 on 6 June 2006. c. His service record indicates he was a dedicated officer and functioned well above normal standards at all times as reflected by the endorsement of his commander and his last four senior raters. His last senior rater was never informed of his promotion documents being lost. He was referred to by vulgar names according to his commander and senior noncommissioned officer. d. The anti-Mexican American and evil actions of several senior staff officers resulted in his hard earned and just promotion packet to COL being hijacked/stolen for the pleasure of those staff officers to take care of one of their friends in want of a promotion to COL. e. History bears it in the Texas Army National Guard (TXARNG) and other State Guard commands that some very senior officers would perform illegal actions for themselves and/or friends to advance in rank or position. Texas has a past and present history of discreet but evil and unjust discrimination against Mexican Americans. His promotion to COL could not have been approved by the State, U.S. Senate and the President of the U.S. if it was never seen by them due it being lost by staff officers. f. His former senior rater concurs with his request for retroactive promotion to the rank of COL. g. He concurred with the NGB's advisory opinion. He should have been promoted to the rank of COL effective June 2003. The advisory correctly noted that he was nominated by those in authority to fill an available COL slot. He was assigned to the COL slot in 2003 and served successfully for 11 months. The advisory opinion correctly concluded that senior leadership supported his promotion to COL. He was never promoted to COL because he was illegally barred from the grade for which he was nominated due to his ethnicity. h. Under normal circumstances an incumbent must serve 3 years before retiring in grade; however, in his case there is an exception to the 3-year rule. The 3-year rule is set for active duty and reserve officers. ROPMA allows for exceptions and/or waivers for an ARNG COL to retire and receive retirement pay as a COL with at least 6 months time-in-grade (TIG), if the retirement is due to maximum age or years of commissioned service. i. In addition, there is an exception for Army Medical Department (AMEDD) officers. He was an AMEDD officer with areas of concentration as a 70A (Health Care Administrator) and 68H (Optical Laboratory Specialist). According to the ROPMA, Addendum 10 February 1997, ARNG officers are allowed to perform duty while on the Reserve Active Status List. j. His case is not without precedent per Department of the Army, Office of the Assistant Secretary, Manpower and Reserve Affairs, Supplemental Order- Fifteen Kentucky Army National Guard (KYARNG) cases. He cites the case of 15 KYARNG officers seeking justice and fairness in their lost promotion opportunity to lieutenant colonel (LTC), COL, and brigadier general due to illegal actions by their superior officers to manipulate the promotion and retention system. Their cases were grouped together to expedite their administrative review. k. The ABCMR has the authority and power to correct errors and injustice committed against ARNG officers for promotion to COL as noted by a past ABCMR case example of the 15 KYARNG officers. l. Numerous studies show there are many toxic leaders in the military. He has lived up to the Army Values and the Soldier’s/Warrior Ethos by keeping faith in his state, country, and the ARNG for over 33 years. His family has also sacrificed so he could serve his country as a first generation American from Mexican American parents. 3. The applicant provides: * self-authored statement * information pertaining to ARNG management issues * a copy of the ROPMA * memorandum, subject: Supplemental Order – Fifteen Kentucky Army National Cases CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130014096, on 11 June 2014. 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 LTC/O-5 with an effective date and DOR 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 Unit Manning Report 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. An NGB Form 22 (Report of Separation and Record of Service) shows he was separated from the ARNG due to resignation. 9. 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). 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 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 (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. In support of his request, the applicant provides a memorandum, subject: Supplemental Order – Fifteen Kentucky Army National Guard Cases, dated 24 April 2002. However, this memorandum specifically pertains to the KYARNG. REFERENCES: 1. Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers. It provides for SSBs. SSBs may be convened to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army discovers one or more of the following: an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error, including officers who missed a regularly scheduled board while on the temporary disability list and who have since been placed on the APL (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). 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. 2. Title 10, United States 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. 3. Title 10, United States 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). 4. Title 10, United States 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. 5. The ROPMA, streamlines the manner by which the RC manage all aspects of appointment, promotion, tenure, and separation of those Reserve officers who are serving in an active status and not on the active duty list. a. Section I, paragraph 1-3, Retired Grade, applies only to those officers selected for promotion by a mandatory board or a Federal recognition board that convened on or after 1 October 1996. It provides that an officer in a grade above major must satisfactory serve in that grade for at least 3 years to retire in that grade. However, if the officer must retire due to completing maximum years of commissioned service or upon reaching maximum age the officer must have held the grade for at least 6 months to retire at that grade. b. Section II, paragraph 2-6e, Continuation of AMEDD officer, AMEDD officers covered by this paragraph include those in the following Corps: Medical; Dental; Veterinary; Medical Service (allied health officers and biomedical sciences officers), to include the Optometry section; Army Nurse; and Army Medical Specialists. It requires that request for continuation of AMEDD officers should be forwarded to CNGB (NGB-ARP-PO) at least 6 months prior to the officer’s mandatory retirement date, should contain the information required by Appendix C, NGR 635-100, and should by signed by the Adjutant General. DISCUSSION: 1. The applicant essentially raises three issues: * he should have been promoted to COL in the TXARNG * there is a mechanism for the Board to correct the error and promote him * he should have retired as a COL 2. As for his promotion to COL, notwithstanding the previous favorable advisory opinion rendered by the NGB, the Board may only correct Army records. The Board has no authority to correct records created by other Services or the Secretary of Defense. Any correction by the ABCMR must comport with other laws. The Board may not ignore a requirement contained in, or outcome dictated by, another statute. Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute. Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied. Consequently, based on the authorities cited above, any correction to the applicant's promotion would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board. Although the applicant may have been eligible for promotion, he was never scrolled or extended Federal recognition. 3. As for a promotion by this Board, the applicant was recommended against a vacancy promotion at the unit/state level. This was not a Department of the Army Selection Board. When this Board discovers a material error with regard to a promotion issue, the Board takes corrective action via an SSB. SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. SSBs may be convened under the law to consider or reconsider commissioned or warrant officers for promotion when DA discovers (1) an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error (SSB required); (2) the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). SSBs are not authorized with a vacancy promotion. 4. As for retirement in the grade of COL, the applicant was recommended for promotion to COL but he was neither promoted nor scrolled. As a result, he retired in the grade of LTC, the grade he held when he resigned. Additionally, retirement in the grade of COL required at least 3 years TIG. 5. The applicant contends that the ROPMA allows for exceptions and/or waivers for an ARNG COL to retire and receive retirement pay as a COL with at least 6 months TIG if the retirement is due to maximum age or years of commissioned service. However, the ROPMA applies only to those officers selected for promotion by a mandatory board or a Federal recognition board that convened on or after 1 October 1996. 6. Title 10, United States 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 the 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. //NOTHING FOLLOWS//