DOCKET NUMBER:  AR20080016758 


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, in effect, reconsideration of his previous request that he be promoted to the rank of brigadier general (BG).  

2.  The applicant provides the following documents in support of his application:  Electronic Mail (e-mail) dated 27 May 2007; Biographical Summary; DA Form   20 (Enlisted Qualification Record); Colonels Selection Board List 1994; U.S. Total Army Personnel Command, Orders A-01-000077, dated 11 January 1996; DD Form 214 (Certificate of Release or Discharge from Active Duty); Request for Reserve Component Assignment or Attachment, dated 29 August 1996; Headquarters, 88th Regional Support Command, Orders 96A-304-144, dated   30 October 1996; U.S. Army Human Resources Command (USAHRC), Orders P02-781639, dated 13 February 2007; Headquarters, Iowa National Guard, Office of the Adjutant General, Orders 160-068, dated 17 August 1988; National Guard Bureau (NGB) , Special Orders Number 176 AR, dated 12 September 1988; NGB Form 22 (Report of Separation and Record of Service); Headquarters, Fourth U. S. Army, Orders 140-103, dated 20 May 1991; Individual Clearance Record; and Headquarters, 6th Infantry Division Memorandum, dated 6 July 1993.

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 AR20060015308, dated 26 July 2007.
2.  During its original review the Board found insufficient evidence to support the applicant's allegation that his non-selection for promotion by the July 1993 BG Promotion Selection Board was unjust and the Board finally concluded that the highest rank he attained was colonel (COL) and that there was insufficient evidence to support his promotion to BG.  

3.  The applicant submitted an e-mail message from the former Chief of the Army Reserve (CAR), a retired major general (MG), as new evidence/argument.  In this e-mail message, the former CAR states that the applicant was selected for a brigade command position and that at the time he was selected for command promotion selection and command selection were separate actions.  He states that the applicant was in fact selected for brigade command; however, he was later considered and not selected for promotion to BG.  The former CAR also indicated that the applicant was initially stonewalled on the reason he was not selected for BG, but he eventually found out that his non-selection was based on an incident that occurred while the applicant was a lieutenant serving in Vietnam. The former CAR indicated that he was stunned because he considered the applicant a worthy candidate for promotion and continuation as a brigade commander.  The former CAR further states the Army reconsidered the applicant for promotion at a later selection board; however, he was again not selected for promotion for the same reason and he was removed from the command based on being a two-time non-select for promotion. 

4.  The applicant's record shows he initially enlisted in the Regular Army and entered active duty on 16 February 1966.  He served for 1 year and 1 month  until being honorably discharged on 16 February 1967 in order to accept a commission.

5.  On 17 February 1967, the applicant executed an Oath of Office and was ordered to active duty as a second lieutenant in the U.S. Army Reserve (USAR). He served on active duty for 3 years and 1 month until being honorably released from active duty (REFRAD) on 16 February 1969.  Upon his REFRAD, he was transferred to the USAR Control Group (Reinforcement) to complete his military service obligation (MSO).

6.  On 17 February 1969, the applicant was promoted to first lieutenant in the USAR.

7.  On 1 February 1973, the applicant was promoted to captain with a date of rank (DOR) of 6 December 1972.

8.  On 28 July 1987, NGB issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) which informed him he had completed the required years of service necessary to qualify for retired pay at age 60 upon application.  

9.  On 15 December 1978, the applicant was promoted to major in the USAR.

10.  Headquarters, Iowa National Guard Orders 124-12, dated 24 June 1980, appointed the applicant in the Army National Guard (ARNG), in the rank of major, effective 24 June 1980.

11.  NGB Special Orders Number 176 AR, dated 12 September 1988, promoted the applicant to the rank of COL and granted him federal recognition in that rank, effective 16 August 1988.  

12.  The applicant's record is void of any information regarding the applicant's consideration and/or selection/non-selection for promotion to BG. 

13.  Headquarters, 88th Regional Support Command, Orders Number 
96A-304-144, dated 30 October 1996, transferred the applicant to the Retired Reserve, in the rank of COL, by reason of unit inactivation, effective
15 September 1996.

14.  USAHRC, St. Louis, Missouri, Orders P-02-781639, dated 13 February 2007, placed the applicant on the Army of the United States Retired list, in the rank of COL, effective 15 March 2007.

15.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Army Reserve General Officer Management Office.  This official stated that although the applicant had been selected for assignment to a General Officer position and performed duty in this position while a member of the USAR, this assignment was not relevant to his selection for promotion to BG.  During the period the applicant served in a General Officer position, the 102nd and 103rd Congress Senate Armed Services Committee confirmed promotion nominations that were submitted by the Service Secretaries through the President in accordance with Title 10 U. S. Code, Sections 593(a) 3371 and 3384.  A review of the Presidential Nomination slates during the period 1990 through 1996 failed to show the applicant was nominated for promotion to BG.  

16.  The Chief, Army Reserve General Officer Management Office further indicated that the law in effect at the time the applicant served required a member be nominated for BG appointment to the Service Secretary by a 

responsible supervisor/commander, who in turn submitted the nomination through the President in accordance with Title 10 U. S. Code, Section 593(a), 3371 and 3384.  This official further indicates that there is no evidence suggesting the applicant was recommended/nominated for promotion to BG or that he was ever selected for promotion to BG by a board convened by the Secretary of Army.  This was verified by a review of the Presidential nominations sent to the Senate Armed Services Committee for promotion to Reserve BG during the period 1990-1996 which did not include the applicant's name.   

17.  Army Regulation 135-156 (Personnel Management of General Officers) establishes the process for assignment and permanent promotion of Reserve officers of the Army National Guard of the U.S. (ARNGUS) and the USAR, not on the active duty list, to and within general officer (GO) grades.  It also sets forth procedures for retaining these officers in and removing them from an active Reserve status.

18.  Title 10 U. S. Code (U.S.C.), Section 12771 (Reserve Officers: Grade on Transfer to Retired Reserve) provides the legal authority for establishing the grade of Reserve officers upon transfer to the Retired Reserve.  It states 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 served satisfactorily, as determined by the Secretary concerned.  

19.  Title 10 U.S.C., Section 593 (10 USC 593) in effect at the time, provided guidance on Army Reserve commissioned officer appointments.  It stated, in pertinent part, that appointments of Reserve officers above the grades of major and lieutenant commander shall be made by the President with the advice and consent of the Senate.  

20.  10 USC 3384, in effect at the time, contained guidance on promotion of Reserve officers to the grade of BG and MG.  It stated, in pertinent part, that Reserve officers could be promoted to BG and/or MG to fill unit vacancies in those grades.  It further stated that within one year after an officer has been assigned the duties of a GO he would be evaluated by his superior officer.  If it were determined the officer was fit for the position the officer's name would be forwarded to the Secretary for consideration by a selection board for promotion to the next higher Reserve grade.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been promoted to BG based on his selection for and service in a general officer position as a brigade commander was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The governing law and regulation in effect at the time required an officer be nominated to the Secretary of the Army for promotion to BG by his responsible supervisor/commander, and if selected for promotion by a board convened by the Secretary of the Army, that he be promoted by the President with the advice and consent of the Senate.  

3.  Notwithstanding the comments provided by the former CAR in the e-mail message provided by the applicant, there is no evidence the applicant was ever selected for promotion by a selection board convened by the Secretary of the Army, or that his name was submitted to the Senate for consent for promotion by the President, as evidenced by the Senate promotion slates for the years 1990—1996.  As a result, there is an insufficient evidentiary basis to support a conclusion that his non-selection for promotion to BG was the result of an error in his record or an injustice in the selection process.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement or that would support amendment of the original Board decision in this case. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ___x____  DENY APPLICATION

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 AR20060015308, dated 26 July 2007.




      _______ _   _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.

ABCMR Record of Proceedings (cont)                                         AR20080016758



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ABCMR Record of Proceedings (cont)                                         AR20080016758



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