APPLICANT REQUESTS: That he be reinstated on active duty in the Active Guard and Reserve (AGR) program.
APPLICANT STATES: That he was not selected for continuation in the AGR program due to genetic discrimination, in that he has ugly/chubby cheeks. He also questions the selection process used by the continuation board which failed to select him, stating that his awards, assignments, levels of responsibility held, evaluations and accolades should have caused him to be selected for continuation, especially in consideration that he has two areas of concentration (skills) which were identified as shortages in the AGR program. Based on the (supposed) fact that other officers with noticeably worse records than his were selected for retention while he was not, it appears that the selection board did not uniformly apply standards on who would be retained. That failure to uniformly apply standards was also evident in the fact that the selection board reported that it voted a second time on minority selection because the selection boards first vote did not result in the selection of a sufficient number of minorities to fulfill the quota imposed on it by the Department. The applicant also questions whether the selection board reviewed his complete record.
In support of his application he submits copies of his officer evaluation reports (OERs), awards, letters of appreciation, certificates of completion of courses of instruction, and other related military records. The OERs submitted by the applicant are not copies of the official record copy. Consequently, they do not have the senior raters profile imposed on them. Of the 11 reports submitted on DA Form 67-8, it appears that he was placed in the top block on only two. Of the three DA Forms 67-7 (an older version of the modern day OER form), he received scores of 176, 184 and 188 out of a possible 200. He also submits documents pertaining to the January 1990 USAR AGR Officer Continuation Board which he obtained under the Freedom of Information Act, which includes instructions to the selection board and the selection boards after action report. The after action report which states, in pertinent part, Statistics at the conclusion of the initial voting revealed minority and female shortfalls in numerous categories. Appropriate files were revoted which resulted in several (borderline) qualified individuals being selected for entrance and continuation.
EVIDENCE OF RECORD: The applicant's military records could not be located. Information contained herein was derived from the documentation submitted by the applicant.
On 20 February 1990, while serving on active duty in the AGR program as the strength management officer in a USAR command,
the applicant was notified that he was not recommended for continuation in the AGR program by the USAR AGR Officer Continuation Board which had convened on 17 January 1990 and would, therefore, be separated not later than 31 May 1990.
Army Regulation l35-l8 and National Guard Regulation 600-5 govern implementation of the AGR program. Essentially, the program provides for selected Army Reserve (USAR) and ARNG personnel to be voluntarily called to active duty for special projects, programs or mission essential tasks. Periods of active duty may vary from l to 3 years, with provisions for voluntary extension of the period of active duty beyond the initial call. Removal from the program before the end of the contracted period of active duty can be accomplished by voluntary resignation, subject to approval, mandatory reasons, such as age or length of service for retirement purposes, medical reasons, failure to be selected for continuation, or by involuntary separation for cause.
Army Regulation 135-18, paragraph 4-11, provides for the convening of continuation boards for individuals performing active duty in the AGR program and for the release from active duty of those individuals who are not recommended for continuation on active duty by a continuation board. This paragraph specifies that the selection boards are to select the best qualified soldiers for continuation.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The applicant has not submitted any evidence which would show that his physical appearance influenced the selection board. Therefore, that contention is dismissed.
2. The fact of the matter is that selection boards are neither required nor permitted to divulge the reasons for their actions. The information he obtained under the Freedom of Information Act in no way conclusively proves that his failure to be selected was the result of genetic discrimination or the result of the selection boards attempt to comply with the instructions it was given by revoting. Therefore, the applicant has failed to show that either the selection boards selection process or its application of standards was flawed.
3. The applicants record of service, as judged by the OERs he submitted, is not as extraordinary as he would have the Board believe. As such, his contention that his record in and of itself should have caused him to be selected for continuation is also dismissed.
4. Whether or not his complete record was made available to the selection board is a question which could only be answered by the applicants former records custodian. The issue should have been raised immediately following his notification of his failure to be selected. At this late date, the Board presumes administrative regularity in that regard.
5. In view of the foregoing, there is no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
David R. Kinneer
Executive Secretary
ARMY | BCMR | CY1995 | 9506737C070209
The applicant requests that his military records be corrected to show that he was approved for a second tour of active duty in the Active Guard and Reserve (AGR) program, and that he be given appropriate back pay and allowances that this correction would entail. The applicants request to be retained in the AGR program in a subsequent assignment was denied based solely on his relief for cause OER. As such, it would be appropriate to grant the relief sought by the applicant, to correct his...
ARMY | BCMR | CY2011 | 20110012756
Part V (Performance and Potential Evaluation (Rater)) the following entries are noted in: (1) Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Unsatisfactory Performance Do Not Promote" block. His record contains the third contested OER and rebuttal to the OER covering the rating period 9 February and 4 June 2008, a change-of-rater OER for his performance of duty as the Training Officer. Army...
ARMY | BCMR | CY2010 | 20100026624
It is in the interest of justice to consider this case because: * It involves long-term institutional discrimination * It requires promotion and assignment data and statistics for proof * The National Guard Bureau (NGB) was often unresponsive to Freedom of Information Act (FOIA) requests and misdirected and/or delayed replies for many months * Key witness testimony was delayed * Counsel was delayed due to his own disability * The State Senator has concerns about discrimination within the...
ARMY | BCMR | CY2006 | 20060001615C070205
The applicant request, in effect, promotion reconsideration to colonel, as an Individual Ready Reserve (IRR) officer, by a special selection board (SSB), under the 2005 year criteria. The applicant's military records show he was appointed in the United States Army Reserve (USAR), as a second lieutenant, effective 11 December 1981. The Board also concludes that the applicant did not present convincing evidence of a material error in his file at the time he was not selected for promotion by...
ARMY | BCMR | CY2011 | 20110025034
The applicant requests a personal hearing and that the following errors or injustices in his record be corrected. He contends: * the period covered is inaccurate and inconsistent, there was no published rating scheme, no timely counseling, and no discussion of objectives or duties * he received his copy of the contested OER without the rating officials signatures after he received the Relief for Cause (RFC) OER * the OER was not processed at the Army Personnel Center (ARPERCEN) within 90...
ARMY | BCMR | CY2005 | 20050009225C070206
The applicant was considered but not selected for promotion. The Officer Policy Division, Office of the Deputy Chief of Staff, G-1 noted that the EO language in the FY02 LTC Army promotion selection board was not ruled unconstitutional. Prior to 2000, selection boards were required to conduct a review of files for the effects of past discrimination in any case in which the selection rate for a minority or gender group was less than the selection rate for all officers in the promotions zone...
ARMY | BCMR | CY2015 | 20150006171
* There is no appeal process, waivers, or redress for AGR officers selected for REFRAD who are eligible for consideration by the REFRAD board; however, officers selected by the board and were later found to have been ineligible for consideration may have their REFRAD selection nullified with approval of CAR of his representative 8. He provides a FAQs printout, updated on 15 April 2014 that answers questions related to: * Officer population to be considered by the REFRAD board * Selection...
ARMY | BCMR | CY2013 | 20130018878.
The applicant requests reconsideration for promotion to major (MAJ)/O-4, Judge Advocate General's Corp (JAGC) by a Special Selection Board (SSB) for a missing DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 1 January 2011 through 31 December 2011 (hereafter referred to as the contested OER). The applicant provided a memorandum from his senior rater to the U.S. Army Human Resources Command (HRC), dated 10 August 2012, requesting that an SSB for reconsideration of the...
ARMY | BCMR | CY2009 | 20090011181
In his 2 March 2009 appeal to the Commander, HRC, St. Louis, Missouri, the applicant states that there is an administrative discrepancy on the second contested OER, Lieutenant Colonel M appears as Colonel M. He contends that he was still a Lieutenant Colonel during his 15 months with the 399th Combat Support Hospital. A DA Form 67-9 (OER) for the period 24 February 2004 through 11 July 2004 shows the applicant was rated Outstanding Performance, Must Promote in Part Va (Evaluate the Rated...
ARMY | BCMR | CY2014 | 20140008284
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. In a continuation of a response to a counseling received on 10 September 2012, recorded on a DA Form 4856, the applicant describes a conversation between him and the new DCO, occurring on or about 23 August 2012, which began with a discussion of the senior NCO's email, and went on to general review of the applicant's leadership style, as described by the two previous DCO's and informal interviews of team members done by the new DCO. The...