IN THE CASE OF: BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20160001506 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20160001506 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by submitting a request to the appropriate authority for approval of a time in grade waiver to allow the applicant to be placed on the Retired List in the rank/grade of brigadier general/O-7. If the request is approved, he should be paid any retroactive retired pay due from the date of his retirement. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. _____________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: 7 November 2017 DOCKET NUMBER: AR20160001506 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests a special selection board (SSB) to consider the applicant's record for promotion to major general (MG)/pay grade O-8 for calendar year (CY) 2009, CY 2010 and CY 2011. He also requests a time-in-grade waiver so the applicant can retire in the rank/grade of brigadier general (BG), pay grade O-7, the highest grade he held. 2. Counsel states the applicant is an African-American with over 35 years of exceptional service who rose to the rank of a general officer (GO) in the United States Army Reserve (USAR). Despite his impeccable record and superior qualifications, his time as a GO was marred by racial prejudice, disparate treatment, and entrenched good old boy favoritism exercised by those with control over his career. These factors unfairly led to his failure to be promoted to MG and subsequent retirement as a colonel (COL)/pay grade O-6 not as a BG/O-7, the rank and grade he held at the time of his retirement. a. His military career stretches back nearly four decades. As with all who ascend to the rank of general, his performance record is exemplary and distinguished. Counsel summarizes the applicant's long career reiterating pertinent points citing examples from his assignments and the evaluations he received in each rank/pay grade. On 1 July 2003 the applicant was promoted to COL and transferred to a joint assignment as Senior Policy Board Advisor with the Office of the Secretary of Defense, Reserve Forces Policy Board in Washington, DC. b. In August 2004, the applicant assumed command as the first African-American commander of 3rd Personnel Command (PERSCOM) in Jackson, MS. He served as its commander until August 2007. His OERs were strong. In his OER ending on 11 May 2005, his senior rater, MG Alan D. B., declared the applicant was "absolutely my best MSC [major support command] Commander. [The applicant] ranks in the upper 1 [percent] of USAR officers... a must select for command at the GO level" (Exhibit 32). His OER ending on 11 May 2006 was positive as well, with his rater, BG Steven W. S. stating the applicant was a must select for GO. His senior rater, MG Alan D. B. concurred and stated, "Promote to BG and select for GO command immediately" (Exhibit 33). In his subsequent OER, and last as a colonel, he received similarly outstanding evaluations from BG Steven W. S. and his new senior rater MG James W. R. c. Counsel states: … there was a dark cultural undercurrent that pervaded his time with the 3rd PERSCOM. It was [the applicant's] first assignment to a traditional troop program unit that was precariously located in the Deep South and has a long history of the 'Good Ol' Boy' network that appeared to exhibit favoritism toward white members at the expense of better qualified black officers and personnel. d. On 12 May 2005, the applicant received an anonymous, racially-charged death threat by email. The email read as follows, "[Applicant] you dumb f----r, you f-----d the wrong person. Your [sic] one dead ni---r" (Exhibit 35). The applicant filed a complaint which was forwarded through command channels to the Federal Bureau of Investigation (FBI). The FBI investigated the complaint but was not able to identify the sender of the message. e. On 3 January 2008, the applicant was notified by the General Officer Management Office (GOMO) that he was promoted to the rank of BG in the USAR. Order Number 003-002 issued by Headquarters, Department of the Army, GOMO announced his promotion with an effective date and date of rank of 7 January 2008. (1) In December 2008, the applicant assumed command of the 87th Army Reserve Support Command (RSC) East, Birmingham, AL, where he would serve until September 2010 (Exhibit 38). (2) As any GO can attest in the upper tiers of the Army Reserve, any adverse, career-damaging actions assume a more subtle nature than might appear at a lower level. The few who are selected to become GOs all have long, decorated careers and all appear objectively qualified. Thus, assignments and promotions are highly selective, competitive, and perhaps due to the small number of GOs, often personal and political. Counsel states, "Assignments are largely controlled by career managers at GOMO." (3) Many times candidates appear so closely matched that the smallest difference in the prestige of an assignment, lack of an award, or bias from personal animus can generate a negative inference that makes all the difference in being selected for a career-advancing assignment and promotion or, as in the applicant's case, being forced to retire in a lower grade than that held on the date of retirement. (4) The applicant strived to command the 87th RSC East in an ethical and competent manner. However, there was an undercurrent of negative activity that was laying the foundation for his promotion passover and unjust retirement in the grade of O-6. He did not trust his chain of command and he struggled with his staff and subordinate units to get his programs implemented. (5) Feelings of prejudice toward minorities generally, and specifically toward the applicant, were evident before he assumed command of the 87th RSC East. According to comments in a Defense Equal Opportunity Management Institution organizational climate survey conducted before the applicant arrived, it appears Soldiers were not being taken care of and the perception of the good old boy network was at its peak. The survey indicated: * some Soldiers felt they could not raise issues without being reprised against * retaliation took the form of administrative actions such as demobilizing Soldiers, evaluations, promotions, leave time, etc. * some Soldiers observed that leaders used their personal beliefs and values to make decisions versus the Army's values and regulations * there was a perception that outspoken minority Soldiers got heat when they brought issues to the forefront * key leaders made negative comments upon learning a new minority commander (i.e., the applicant) had been appointed, which reinforced what many minority Soldiers felt about how they were disrespected (Exhibit 39) (6) After assuming command the applicant wanted his own information about the unit, so he commissioned a command climate survey in February 2008. The survey results contained the following comment labelling the applicant a racist: "The commander is too racist. He fires all white chain of command and replaces them with Afro-American." (7) Comments within the command climate survey prompted his rater to commission a second command climate survey in July 2008 and these results contained the same, verbatim statement (Exhibit 40), but the statement and the applicant's rater concerns were entirely unfounded because the applicant hired three African-American officers during his tenure and he did so upon recommendations from his staff, a command sergeant major (CSM) and his rater. (8) At the 87th RSC East he hired officers through fair competition that coincidentally resulted in Caucasians filling positions. Despite this, the applicant's hiring process repeatedly came under unwarranted scrutiny. For example, in September 2010, based on an anonymous email alleging improper hiring actions, an investigation was initiated into the applicant’s hiring practices. Counsel claims the allegation was entirely baseless and clearly the product of disgruntled members of the 87th RSC East who sought to undermine and embarrass the applicant (Exhibit 41). e. The applicant was notified by higher authorities that his position on the unit manning document was downgraded from O-7 to O-6. He believed it was a perceived lower "scope of responsibility." The effect of this action was subtle but severe. When the applicant went up for consideration for subsequent assignments or promotion boards his record reflected an assignment considered to be beneath that of a GO or otherwise not evidencing a positive, upward career trajectory. Again, in the upper tiers of GO promotions, even the slightest negative perception or inference based on an officer's assignments can be disastrous. Despite knowing the adverse impact of downgrading the applicant's assignment and having the power to mitigate the effects by reassigning him, his GOMO career manager did nothing. The applicant remained in this (perceived) inferior assignment for 37 months. Perhaps more importantly, both GOs affected (downgrading personnel authorization rank/grade of two units) were African American (Exhibit 42). f. The applicant's command OERs at 87th RSC East appear positive but it appears they had a damaging effect on his career. His rater said the applicant should be promoted "upon successful completion of BG command." His senior rater said the applicant had mastered the GO command and was a "must select for promotion to major general." His final OER was processed late (beyond the mandatory 90 days) due to the retirement of his rater (Exhibit 46). Since the OER was late, it was not submitted to the Fiscal Year (FY) 2010 General Officer Assignment Advisory Board (GOAAB) which selects GOs for assignments for the next fiscal year and then the General Officer Promotion Selection Board (GOPSB) convenes after the advisory board. Counsel expressed concerns with non-rated time, the applicant's rater retired, and the senior rater prioritized other officers' evaluations before the applicant's, and then a new rater who would not rate the applicant. g. An officer who was assigned to the 87th RSC East from September 2009 to June 2010 provided a sworn statement attesting to the fact that "nepotism was more prevalent than any other unit I have been associated with in my 32 years of Army service" (Exhibit 49). h. The applicant was embarrassed by a senior Army GO when the senior GO contacted subordinate members of the applicant's staff and provided them with specific instructions that ultimately undermined a conference the applicant was planning. i. Upon completion of GO command at 87th RSC East, the applicant was reassigned and deployed to Guantanamo Bay, Cuba. He served as the joint task force deputy commanding general from September 2010 to August 2011. He received very favorable OERs recommending promotion to MG and he was a top one percent performer within the GO ranks. In January 2011, the applicant requested an extension of his redeployment date requesting to remain in Cuba. j. The calendar year 2011 GOAAB met and determined the applicant's next command would be at the 290th Military Police Brigade. The applicant was scheduled to assume command on 7 January 2012. However, this command assignment was not on active duty and he was required to revert to a traditional Reserve status. The applicant wanted an active duty billet and felt slighted that he was never consulted by his GO career manager. The current commander was a COL/pay grade O-6. The FY2012 GOPSB met late in calendar year 2011 and the applicant was not selected for promotion to MG/pay grade O-8. k. Counsel argues that the applicant was mistreated by his rater and senior rater. It appears the applicant overstepped his boundaries by trying to communicate with the current O-6 commander of the 290th Military Police Brigade 7 months before the scheduled change of command date. This action appears to have irritated the next senior GO who made disparaging remarks towards the applicant in a public setting. The applicant strongly feels he received negative treatment by his pending new GO rater. l. The applicant's mandatory removal date under the provisions of Title 10, U.S Code, section 14580 was 7 January 2013. He was notified he had two options either elect immediate retirement at a lower grade or discharge. As he had 20 years of active federal service, he elected active duty retirement though at the lower pay grade of O-6. His retirement at 20 years of active federal service is considered voluntary. k. Title 10, U.S. Code, section 1370(a)(2)(A) provides that an officer over pay grade O-4 who voluntarily retires must have served on active duty in the highest grade held for 3 years in order to retire at the highest rank/pay grade. Counsel states there is a provision of law allowing for the President of the United States to waive the time in grade provisions of the law. The applicant submitted a letter through his chain of command to the President requesting a one-time extension so he could obtain 3-years of active federal service as a BG/pay grade O-7. A senior GO informed the applicant his request to the President could not be supported. Thus the applicant retired with 26 years of active federal service in the rank of COL/pay grade O-6 effective 1 January 2013. 3. Counsel provides separate arguments for why the applicant should receive relief. a. Counsel claims the applicant was placed at a disadvantage in his GO assignments as he did not think they were career-enhancing assignments. He argues a COL downgraded the applicant’s GO command billet to O-6 because she deemed the unit commander should be in a lower rank. The applicant's career management officer never tried to help him by reassigning him to another GO command so he could fairly compete for MG command and staff positions. b. The applicant was placed at a disadvantage before the GOAABs due to favoritism exercised by senior GOs who acted to intentionally harm the applicant's career chances. The applicant and counsel claim that Caucasian officers with inferior qualifications received disproportionally better assignments. Counsel provides information pertaining to other GOs who appear to the applicant as being favored by a MG. He also outlines the careers of several GOs who from his perspective appear to have received favorable treatment while he did not due to his ethnic nationality. c. Counsel presents arguments that the applicant received prejudicial OERs that negatively affected his record during reviews by GO boards both for retention and for promotion. Counsel disputes OERs written by the same GO that the applicant had worked for both as a COL and then as a GO. From counsel's prospective "the low evaluations are telling and suggest a nefarious intent to place [the applicant] at a disadvantage." Counsel also points out OERs were not processed to timeliness standards and some OERs were unfair and negatively impacted the applicant's promotion to MG. 4. Counsel provides: * Exhibits 1 through 34, the applicant's OERs from his commissioning date through 11 May 2007 * Exhibit 35, Complaint about threatening email * Exhibit 36, Promotion Order to BG, effective 7 January 2008 * Exhibit 37, OER, 15 August 2007 thru 14 August 2008 * Exhibit 38, OER, 15 August 2008 thru 30 June 2009 * Exhibit 39, Organizational Climate Survey Report, dated 19 July 2007 * Exhibit 40, Command Climate Assessment, dated 16 July 2008 * Exhibit 41, Memorandum For Record (MFR), COL Jody J. D., dated 14 September 2010 * Exhibit 42, Steven W. S. email, COL Tammy S., dated 18 May 2009 * Exhibit 43, OER, 15 August 2007 thru 14 August 2008 * Exhibit 44, OER, 15 August 2008 thru 30 June 2009 * Exhibit 45, OER, 1 July 2009 thru 31 March 2010 (unsigned) * Exhibit 46, email thread from 10 May through 22 September 2010 regarding an unsigned OER * Exhibit 47, OER, 1 July 2009 thru 31 March 2010 (drafted by the applicant) * Exhibit 48, OER, 1 July 2009 thru 31 March 2010 (final version completed and signed on 22 October 2010) * Exhibit 49, COL George M. B., sworn statement dated 7June 2012 * Exhibit 50, email and Memorandum of Understanding concerning equal opportunity conference, dated 18 September 2012 * Exhibit 51, OER, 1 April 2011 thru 24 August 2011 * Exhibit 52, OER, 1 April 2010 thru 31 August 2011 * Exhibit 53, email thread from applicant and MG Sanford E. H. concerning new command assignment * Exhibit 54, email thread, COL Scott P. * Exhibit 55, email thread, dated 16-17 November 2011 * Exhibit 56, applicant's MFR, dated 8 January 2012 * Exhibit 57, Peer and Advisory Summary Fiscal Year (FY) 2009-2012 (results for applicant) * Exhibit 58, Applicant's MFR, dated 8 January 2012 (duplicate Exhibit 56) * Exhibit 59, Steven W. S., OER, 25 August 2011-12 July 2012 * Exhibit 60, OER, 13 July 2012 thru 5 January 2013 * Exhibit 61, Steven W. S., Office of the Chief, Army Reserve (DAAR-GO) Memorandum, dated 17 September 2012 * Exhibit 62, email thread between the applicant and GOMO, Office of the Chief, Army Reserve, Valerie A. O. and Delgenia L. dated 19 September 2012 * Exhibit 63, Steven W. S. applicant's memorandum, subject: Voluntary Retirement * Exhibit 64, applicant's retirement orders, effective 31 December 2012 * Exhibits 65 through 70, Biographies of six USAR GOs CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer in August 1977 and attended active duty training. Upon his 9 May 1978 release from active duty, his DD Form 214 (Report of Separation from Active Duty) shows he had 5 months and 4 days of prior inactive service and 3 months and 23 days of active federal service. His birth month and year are shown as March 1955. 2. After a period of inactive service, the applicant entered active duty on 3 January 1984 as a member of the USAR. He served continuously in positions of increasing responsibility and was promoted to COL effective 1 July 2003. 3. The applicant assumed command of 3rd PERSCOM (USAR) located in Jackson, Mississippi. He reported to the Commanding General, 81st Regional Readiness Command (RRC), a major subordinate command of the United States Army Reserve Command (USARC). It appears the 3rd PERSCOM commanding officer was an authorized GO position as per his OER with a thru date of 11 May 2005. 4. The applicant received an OER with a thru date of 11 May 2005 wherein his senior rater was a MG who commanded the 81st RRC, USARC. The senior rater stated, "Absolutely my best MSC [major subordinate commander]. [The applicant] ranks in the upper 1 [percent] of the USAR officers… Select now for Brigadier General. A must select for command at the GO level." He evaluated the applicant's promotion potential as "best qualified" and ranked him "above center of mass" for his peer group. At that time, the senior rater had 80 total ratings for colonels. 5. On 12 May 2005, the applicant received a racially biased threatening email. The email was sent by a generic digital sender and the author was unknown. Army officials determined the complaint should be forward to the FBI for it violated Federal law prohibiting transmitting interstate threats. 6. On 11 May 2006, the thru date of his next command OER, his rater stated, "Exceptionally outstanding skills in Human Relations and Human Resource management at the operations and strategic levels of command and Army Staff operations." The rater also stated the applicant "is a must select for General Officer." His senior rater again stated the applicant was "clearly the best MSC Commander in the 81st RRC eight state region… he is among the top 1 [percent] of [senior] officers that I have observed…" His senior rater again stated the applicant should be promoted to BG and selected for GO command immediately. His senior rater evaluated him as "best qualified" and above center of mass in comparison to his peers. 7. On 11 May 2007, the thru date of his third OER while serving as the commander of the 3rd PERSCOM (USAR), his rater remained the same, but he had a new senior rater. His rater acknowledged he had been selected for promotion to BG. His new senior rater stated, in effect, he was the best commander in the 81st RRC. The senior rater stated the applicant should be promoted ahead of his peers, rated him as best qualified, and saw his potential as above center of mass. 8. On 13 August 2007 the applicant was released from active duty and issued a DD Form 214 (Certificate of Release or Discharge from Active Duty). This DD Form 214 shows he completed 23 years, 7 months, and 11 days of net active federal service. This form shows his rank and grade as COL/pay grade O-6 with a date of rank of 1 July 2003. He had completed 3 years' time in grade as a COL on active duty. Upon release from active duty, he was transferred to the USAR Control Group (Reinforcement). 9. On 7 January 2008 the applicant was promoted to BG/pay grade O-7 in the USAR component. The authority for his promotion cited on his promotion orders was Title 10, U.S. Code, section 12203(a). 10. The applicant assumed command of the 81st RSC East, Birmingham, Alabama. He received an OER with a thru date of 14 August 2008. He was rated by a MG and senior rated by a lieutenant general who was the Commanding General, USARC. His senior rated stated, "[The applicant] is clearly one of my best and brightest Brigadier Generals. He is destined to become one of the Army Reserve's most capable Major Generals… a definite select for Major General." His senior rater rated 11 BGs finding the applicant best qualified and his potential as above center of mass. 11. His next OER with a thru date of 30 June 2009 shows he had the same rater and senior rater. This report shows his rater stated, "[The applicant] is a top 5% officer that mastered GO command… absolutely must select for promotion to Major General." His senior rater stated, "[The applicant] has established himself as one of the top GO commanders in the USARC… future [commanding general] for a USAR Division or Regional Support Command… should be selected for Major General." At this point, his senior rater who evaluated nine BGs found the applicant's potential as center of mass. (This is a change from his previous OER.) This OER provided by the applicant did not contain signatures nor the dates his raters signed the evaluation. 12. On 7 September 2010, the applicant entered active duty as a USAR GO and was assigned to Joint Task Force Guantanamo, Cuba, as the deputy commanding general. During his period, he was rated by a rear admiral and a general of the U.S. Air Force. He received two OERs with through dates of 31 March 2011 and 24 August 2011 by the same rater and senior rater. Both these commanding generals stated the applicant was a must select for MG and should be promoted to MG. His work ethic, performance and decisiveness could be trusted. His senior rater rated three BGs and evaluated the applicant as center of mass (31 March 2011) and then above center of mass (24 August 2011). 13. The applicant was released from active duty upon completion of required active service on 14 November 2011. He was issued a DD Form 214 showing he had 1 year, 2 months, and 8 days of net active service this period with total prior active service of 24 years, 10 months, 3 days. His rank and grade are shown as BG/O-7 with a date of rank of 7 January 2008. He was transferred to the 290th Military Police Brigade (USAR), Nashville, Tennessee. 14. The applicant’s first OER as Commanding General, 290th Military Police Brigade, with a thru date of 12 July 2012, shows he was rated by MG Sanford H. and senior rated by MG Jon J. M. His rater stated, "An exemplary performance by one of my best Brigade Commanders… he exceeded my expectations… a must select for Major General." His senior rater stated, "[The applicant] is unequivocally in the top 20% of the BG's I senior rate. Promote immediately. [Applicant] is destined to command at the Major General level…" His senior rater found he was above center of mass and at the time the senior rater rated 41 BGs. 15. A second OER in the same position, with a thru date of 5 January 2013, shows he had the same rater and a new senior rater, MG Luis R. V. The rater stated, "[The applicant] led the 290th Military Police Brigade to achieve impressive improvement and contributed greatly to the 290th Military Police Brigade…[the applicant's] efforts in building [Equal Opportunity] and [Sexual Harassment/Assault Response and Prevention] have created a positive command climate… officer is retiring from military service.” His new senior rater stated, “[The applicant] finished his military career in fine fashion and with significant accomplishments in a myriad of areas… Strongly recommend using him in the Senior Executive Service." His senior rater found him to be best qualified and for potential he was center of mass. 16. The applicant, through counsel, provided a memorandum, dated 17 September 2012, from the Office of the Chief, Army Reserve, subject: Option Election Upon Completion of Maximum Years of Commissioned Service. The memorandum stated the applicant was approaching his maximum years of commissioned service authorized by law. a. Title 10, U.S. Code, section 14508 limited the maximum number of years of commissioned service. As of 7 January 2013, he was required to elect retirement from active federal service or discharge as a Reserve officer. b. He was advised Title 10, U.S. Code, section 1370, required that he serve at least 3 years on active duty to receive retired pay as a BG. During his tenure as a USAR GO, he served 1 year, 2 months, and 8 days on active duty. Since the active federal service time in grade requirements were not met, he was entitled to retired pay in the highest grade served on active duty for at least 6 months, i.e., as a colonel. He was also advised that at age 60 he could submit a request to U.S. Army Human Resources Command to compute his retired pay based the 2009 National Defense Authorization Act, wherein upon reaching age 60 he can be retired at the highest grade he held as a member of the Reserve Component. 17. In a 4 December 2012 memorandum provided by counsel, the applicant requested voluntary retirement based on 26 years of active federal service and 35 years of service for pay purposes. This memorandum contains regulatory guidance and sites law concerning retirement and retirement benefits. He then adds the following information. a. He questioned why he had not been consulted by GOMO about his preferences for a follow-on assignment following his assignment at Guantanamo, Cuba. He was not given options for his GO assignment. He states he was not generally treated with the dignity and respect due him as a general officer. He knew that other general officers were treated differently because of whom they worked for. b. He cited that BG James D. had recently retired from active duty and he was advised by the same GOMO counselor he had a choice of continuing on active duty, take another Reserve GO billet or go to the Retired Reserve. The applicant asserted that he would have made the same decision if he had been presented with options, but he wasn't given those options. He remarked, "I wanted to stay on active duty, period." c. He received a late OER from a GO years earlier. d. He quoted a paragraph that he stated was included in the instructions for selection boards. The quote states, "You must be alert to the possibility of past personal or institutional discrimination in the assignment patterns, evaluations, or professional development of all officers…." e. He states considering the provisions of Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), paragraph 6-1(c), pertaining to determination of his retired grade, and after review of his records, he believes he is entitled to retire in the rank/grade of BG/O7. He understands the Secretary of the Army (SA) or the Secretary of Defense in normal cases will determine his retired grade, and he will be informed if he is not entitled to be retired in the rank/grade of BG/O7. f. He requested his retirement application be forwarded to the President of the United States for a waiver for exceptional and unusual circumstances under the provisions of Title 10, U.S. Code, section 1370 and a time in grade waiver. His reasoning includes institutional discrimination and abuse of power by the "disparate/unfair treatment the GOMO career managers" provided to him. He knows of other BGs who were counseled and allowed to remain on active duty until they met the qualifications to retire as a BG. He states he was not considered or assigned to positions commensurate with his skills and abilities. He compares his GO service record to that of another officer. Finally, he asserts he wanted to remain on active duty so he could retire as a BG because retiring as a COL/O-6 means he will lose retirement money estimated at $10,000 per year. 18. Counsel provided a memorandum for record prepared and signed by the applicant on 8 January 2012. Briefly, he states he had a personal conversation with his new rater concerning his rater's command philosophy and what would be expected of him. Then the conversation "went to the bizarre in [his] estimation… [The rater] started talking about the following: 'Well, I don’t really like you!'" He states his new rater's body language really gave away the fact he didn't care for the applicant. The new rater mentioned he sat on a general officer selection board. The applicant stated if his new rater sat on the 2011 GOAAB, then he did the applicant no favors. Also the 290th Military Police Brigade was substandard to other similar brigades in the major command. He asserts the brigade was a former Readiness Support Group with an effective date in September 2011. He cites other general officers that he had spoken too. 19. Effective 31 December 2012, the applicant was retired. Orders 355-01, dated 20 December 2012, issued by the U.S. Army Human Resources Command shows his retirement grade/date of rank as COL/01 July 2003. The date he was placed on the retirement list was 1 January 2013. He was retired under the provisions of Title 10, U.S. Code, sections 1370/3911 and his basic pay data shows 35 years, 4 months, and 18 days. 20. The documents submitted on the applicant’s behalf by counsel are cited throughout counsel's brief. The OERs prior to his command OERs as a COL were not discussed in these proceedings. In addition, the biographies of the various general officers and his Peer and Advisory summaries for FYs 2009 – 2011 were also not discussed in these proceedings. REFERENCES: 1. Army Regulation 135-156 (Reserve Component General Officer Personnel Management) establishes policies and procedures for the personnel management of Reserve Component of the Army National Guard of the United States and the USAR who are on the Reserve active status list, to and within GO grades. a. The Secretary of the Army (SA) will, unless otherwise specifically delegated, exercise final approval authority for assignment of USAR officers to and from any Army GO positions. There are numerous actions requiring SA approval. * SA will appoint board members and approve board memoranda of instructions for boards convened by the SA * SA will establish or delete USAR GO positions * Determine length of tenure for USAR GO assignments * Retention of Reserve of the Army GOs in an active status beyond their mandatory removal date b. The Chief, Army Reserve (CAR) will exercise the following authority for USAR GOs assigned to USAR organizations. * Approval of tenure extensions up to 90 days * Approval of early release up to 90 days * Assignment to lateral positions with the USAR * Approval of USAR GO position titles and duty descriptions not prescribed in statute c. Under the provisions of Title 10, U.S. Code, section 12004(a), the authorized strength of Army Reserve Component GOs in an active status is 207. The USAR is authorized 115 and the ARNGUS is authorized 92 federally recognized general officers. d. CAR GOMO is responsible for identifying nominations for various Reserve Component GO assignments. Consistent with DA GOMO, the CAR GOMO will establish procedures for GO candidates to submit applications for consideration by the board. (1) The USAR GOAAB will be convened annually by the SA to consider USAR officers for assignment to GO positions during the assignment year beginning on 1 April and ending 31 March. (2) Immediately following the recess of the non-statutory USAR GOAAB, the USAR GOPSB will be convened annually by the SA to consider USAR officers for promotion based on the assignment recommendations of the USAR GOAAB. If an officer is recommended for an assignment that is senior to the assignment in the grade the officer currently holds, the officer will be considered for promotion to that higher grade by the USAR GOPSB pursuant to Title 10, U.S. Code, sections 14101(a) and 14315(b). The DA GOMO will issue the SA's eligibility criteria for each year's board. (a) The USAR GOAAB will produce order of merit lists that will serve as the basis for the CSA and CAR to make GO assignment recommendations to the SA. Each COL and BG who is recommended on a USAR GOAAB order of merit list for assignment to a position in the next higher grade will be considered by the USAR GOPSB. (b) The annual USAR GOPSB is conducted as a series of consolidated vacancy promotion boards. e. Reserve Component GOs will be retained in an active status only to fill mission-based requirements. f. Within 30 days after ceasing to occupy a position commensurate with his/her grade, a GO will elect one of the following options and the SA shall transfer or discharge the GO according to the option the officer elects. * Transfer to Retired Reserve, if qualified * Transfer in grade to the Standby Reserve (Inactive Status List) * Discharge from Reserve appointment and, if qualified, appointment in the Reserve grade held by the office as a Reserve officer before their appointment to GO * Discharge from Reserve appointment g. A Reserve Component GO who is eligible for regular retirement after completing 20 years of active federal service must submit his/her request for retirement through the appropriate executive agent for review. This is considered a voluntary separation. (1) The SA has the authority to approve the regular retirement of an RC GO in the grade of O–7 or O–8, unless the GO is requesting a time-in-grade waiver to retire at the highest grade held. In that case, the retirement request will be forwarded to the Office of the Under Secretary of Defense (Personnel and Readiness) for approval. The number of time-in-grade waivers per fiscal year may not exceed two (2) percent of the authorized active duty strength for that fiscal year. (2) Once the RC GO’s regular retirement request is approved by the appropriate authority, the U.S. Army Human Resources Command will publish retirement orders placing the RC GO on the Reserve Retired List pursuant to Title 10, U.S. Code, section 3966(b), which will reflect the officer's entitlement to regular retired pay. The effective date of the officer’s placement on the Reserve Retired List must be on the first day of the month. (3) Except as provided in Title 10, U.S. Code, section 12741, an RC GO who is already entitled to regular retired pay is precluded by Title 10, U.S. Code, section 12731(a)(4) from being entitled to receive non-regular retired pay at or after age 60. As a result, most RC GOs who have completed 20 years of active federal service can only request regular retirement, and their retired grade will be determined based only on active federal service pursuant to Title 10, U.S. Code, section 1370(a). (4) As an exception to the general rule, Title 10, U.S. Code, section 12741 and Department of Defense Instruction 1215.7 permit certain RC officers who serve in the Ready Reserve after becoming entitled to regular retired pay to elect to receive non-regular retired pay in lieu of regular retired pay at or after age 60. If eligible to make this election, an RC GO would have his/her retired grade determined based on active federal service as well as active status service in the Ready Reserve pursuant to Title 10, U.S. Code, section 1370(d). 2. Title 10, U.S. Code, section 1370 states: a. Unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months. b. In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than 3 years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than 2 years. c. In the case of an officer to be retired in a general or flag officer grade, authority provided by the Secretary of Defense to the Secretary of a military department under subparagraph (a) may be exercised with respect to that officer only if approved by the Secretary of Defense or another civilian official in the Office of the Secretary of Defense appointed by the President, by and with the advice and consent of the Senate. d. Authority provided by the Secretary of Defense to the Secretary of a military department under subparagraph (a) may be delegated within that military department only to a civilian official of that military department appointed by the President, by and with the advice and consent of the Senate. e. The President may waive subparagraph (a) in individual cases involving extreme hardship or exceptional or unusual circumstances. The authority of the President under the preceding sentence may not be delegated. f. An officer whose length of service in the highest grade he held while on active duty does not meet the service in grade requirements specified in subsection (a) shall be retired in the next lower grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months. 3. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. By law, the applicant was retired in the rank and grade of COL/O-6 based on his more than 26 years of active federal service. While on active duty in a USAR status, he was promoted to COL on 1 July 2003. He remained on active duty until 13 August 2007 when he was released from active duty. He served on active duty in the rank/grade of COL/O-6 for more than 3 years. 2. The applicant was promoted to the rank and grade of BG/O-7 in the USAR effective 7 January 2008. It appears during the USAR GOAAB convened in FY 2011 or FY 2012, he was not selected for a MG/O-8 position with the USAR. Reserve Component GOs will be retained in an active status only to fill mission-based requirements. As he was not retained to fill a mission-based requirement and he had exceeded the statutory maximum time in service (over 35 years as a commissioned officer), he had two options: to immediately retire based on more than 20 years of active federal service or retire from the Reserve Component at age 60 (year born 1955, age 60 in year 2015) in the rank and grade of BG/O-7. 3. The applicant received many commendable evaluations with recommendations for promotion to MG. Through counsel he appears to state that a member of the USAR GOAAB or USAR GOPSB did not recommend him for promotion. In addition, he claims that favoritism was exercised by senior GOs who acted to intentionally harm his career and that past personal or institutional discrimination existed in the Department of the Army. Other than his statements, there does not appear to be any clear evidence of institutional bias either in selection for positions or for promotion. 4. As this Board is not an investigative agency, it cannot address any issues raised by the applicant and his counsel concerning institutional discrimination or personal discrimination by his various GO raters and senior raters. 5. In his voluntary retirement application, the applicant did ask that his retirement application be forwarded to the President of the United States although he did not provide specific correspondence addressed to the President. 6. There is a provision of regulation allowing the Office of the Under Secretary of Defense (Personnel and Readiness) to approve time in grade waivers. There is a fiscal year limitation not to exceed two percent of the authorized active duty strength for that fiscal year. The Board must determine if his 2012 retirement application should be presented to the Under Secretary of Defense (Personnel and Readiness) to determine if he is eligible for a two percent waiver authority. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001506 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001506 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2