IN THE CASE OF:	  

		BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090006303 


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 that his date of rank for promotion to Brigadier General (BG) be adjusted from 1 August 2008 to 1 January 2007.

2.  The applicant states there was an excessive and unexplainable period of time that elapsed between the June 2006 General Officer Federal Recognition Board (GOFRB) and his 1 August 2008 effective date of promotion.

3.  The applicant provides State of Michigan, Department of Military and Veterans Affairs, Lansing, MI, Orders 256-144, dated 13 September 2006; Orders, 256-141 issued by the same headquarters, dated 13 September 2006; a memorandum from the U.S. Army Chief of Staff, and National Guard Bureau (NGB), Special Order GO-214-01 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Records show that the applicant is currently serving as a BG in the Michigan Army National Guard (MIARNG).

2.  In 2004, the applicant's records were considered by a GOFRB for promotion to the grade of BG.  Prior to the completion of that board, a complaint was filed against the applicant which resulted in a Department of Army Inspector General (DAIG) investigation.

3.  On 8 November 2004, the DAIG Report of Investigation #04-***, which substantiated that the applicant improperly supported a non-federal entity, was approved by the Vice Chief of Staff of the Army.

4.  As a result of the substantiated findings, the applicant was removed from the 2004 GOFRB.

5.  On 26 September 2005, in a memorandum to the Chief, NGB, the Secretary of the Army (SA) disapproved the June 2005 GOFRB recommendation concerning the promotion of the applicant.  This memorandum further showed that the previous decision to disallow GOFRB consideration was reversed and that the applicant could appear before subsequent GOFRBs.

6.  In June 2006, the applicant was again considered for promotion by a GOFRB for promotion to BG with substantiated adverse information.

7.  Orders 256-141, dated 13 September 2006, relieved the applicant from the duty position of Chief Joint Staff (Joint Staff Headquarters) and reassigned him  to the duty position of Assistant Adjutant General (Command Group), effective     1 October 2006.  This position was identified vice a standing BG's separation.

8.  Orders 256-142, dated 13 September 2006, are not available for review with this case.  However, Orders Number 256-143, dated 13 September 2006, revoked Orders 2562-142 which pertained to the promotion of the applicant.

9.  Orders 256-144, dated 13 September 2006, show that the applicant was promoted to BG effective 1 October 2006.  

10.  NGB Special Order GO-214-01, dated 1 August 2008, show that the applicant was awarded permanent Federal recognition for the rank of BG, effective 1 August 2008.  This is also the date that the Senate confirmed the applicant's promotion to BG.

11.  The applicant provided a follow-on letter, dated 6 April 2009, which essentially stated that through no fault of his own, there was a long unanswered period between the end of the June 2006 GOFRB and the actual time that he received Senate confirmation and Federal recognition.

12.  On 8 July 2009, the Chief, General Officer Management, NGB provided an advisory opinion for review with this case.  The opinion recommended that the applicant's request for back date of his promotion be denied because the Department of the Army followed standard practice for officers who met a board 
with adverse information and immediately separated his packet from the list to be processed.  The applicant's packet was then routed through Department of Defense channels and ultimately received Senate confirmation authorizing the Chief, NGB to extend Federal recognition on 1 August 2008.  The opinion continued that were it not for the substantiated adverse information, the applicant would have received Senate confirmation much earlier and his date of rank would have been no later than the date of rank he requested from the Army Board for Correction of Military Records (ABCMR).

13.  On 9 July 2009, the applicant was provided a copy of the NGB advisory opinion for information and to allow him the opportunity to submit comments or rebuttal.  The applicant's provided a 5 August 2009 written response to the advisory opinion.  In his response, the applicant essentially restated his contentions regarding the excessive length of time for processing his Federal recognition.

14.  Army Regulation 135-156 (Army National Guard and Army Reserve -Reserve Component General Officer Personnel Management) governs the responsibilities, policies, and personnel management procedures pertaining to Reserve of the Army general officer authorizations, assignments, promotion, Federal recognition, frocking, retention, separations, and the conduct of selection/advisory boards.

15.  Paragraph 5-3a of Army Regulation 135-156 states that in accordance with DOD policy, the SA is required to furnish any credible information of an adverse nature to all RC [Reserve Component] GO promotion, assignment advisory, and Federal recognition boards.  Department of Defense Instruction (DODI) 1320.14 defines adverse information as any substantiated adverse finding or conclusion from an officially documented investigation or inquiry, or other official record or report, but it does not include records of minor offenses that did not result in personal harm or significant property damage, and it does not include information that is more than ten years old, except in limited circumstances prescribed in Army policy. 

16.  Paragraph 5-3b of Army Regulation 135-156 states that adverse information screening will be conducted for all eligible officers who will be considered by a GOFRB, GOAAB [General Officer Assignment Advisory Board], or GOPSB [General Officer Promotion Selection Board], and screening will continue for all officers who are recommended by one of these boards. The screening will include officially documented investigations or inquiries and other official records and reports.  Potential adverse information that is ascribed to an officer will be processed according to the procedures in paragraph 5-3c.  

17.  Paragraph 5-3c of Army Regulation 135-156 states that an officer who has potential adverse information ascribed to him/her will be provided a summary of 
the information and a reasonable opportunity to submit written comments to the SA about the information.  Upon review of the potential adverse information and the officer’s written comments, the SA (or his designee) will determine if the information and the officer’s comments will be shown to the relevant RC GO board, or, if appropriate, a promotion review board (PRB).

18.  Paragraph 5-6 of Army Regulation 135-156 states that consistent with National Guard Regulation 600–100, the Chief, NGB will establish policies and procedures to tender Federal recognition to eligible ARNGUS [Army National Guard of the United States] officers.  Specifically, (1) All O–7s in an active status may be promoted once they are confirmed by the Senate for promotion to O–8 and assigned to the higher grade billet.  (2) All O–6s in an active status may be promoted once they are confirmed by the Senate for promotion to O–7 and assigned to the higher grade billet.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his date of rank for promotion to BG should be adjusted from 1 August 2008 to 1 January 2007, based on the fact that an excessive period of time elapsed between the June 2006 GOFRB and the
1 August 2008 effective date of promotion was carefully considered.

2.  Evidence shows that the applicant was removed from the 2004 GOFRB based on substantiated allegations of improper support of a non-federal entity.  The applicant was subsequently considered by the 2006 GOFRB which recommended him for promotion.  Based on the fact that there was adverse information in his record, his promotion packet was removed from the standard Senate confirmation process and placed for special processing.  The NGB indicated that the applicant's packet was routed through all of the appropriate channels and that he ultimately received Senate confirmation.

3.  Given the fact that the applicant's Senate confirmation packet contained adverse information and that he was being considered for promotion to a general officer rank, the processing time of 26 months to ensure that he met the standards required to receive Senate Confirmation was not excessive. 

4.  The applicant was appropriately granted Federal recognition on the date that the Senate confirmed his promotion.  Based on applicable law and regulations, it would not be appropriate in this case to promote the applicant prior to the date that he was confirmed by the Senate.

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 for correction of the records of the individual concerned.



      __________XXX__________
               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)                                         AR20090006303



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ABCMR Record of Proceedings (cont)                                         AR20090006303



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