IN THE CASE OF:
BOARD DATE: 5 August 2010
DOCKET NUMBER: AR20090017281
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 APPLICANTS REQUEST, STATEMENT AND EVIDENCE:
1. The applicant requests the following relief:
a. Consideration that this request be deemed timely in light of the surreptitious nature of the irregular, illicit and inappropriate letter inserted into his personnel file. He also requests a personal appearance.
b. The expurgation of the 1996 Counseling Letter (CL) [sic] (Letter of Reprimand (LOR)) and any other related documents inserted secretly and improperly in his personnel file.
c. The insertion into his personnel records of a DA Form 67-8 (U.S. Army Officer Evaluation Report (OER)) covering the period 16 May 1993 through 31 August 1993 (hereafter referred to as the first contested OER) that was improperly withdrawn from his New York Army National Guard (NYARNG) records and adjusting the rating period for contemporaneous reports.
d. The expurgation of the DA Form 67-8 covering the period 1 October 1995 through 31 March 1996 (hereafter referred to as the second contested OER) and the insertion of an appropriate letter stating that the report was removed because of General Officer (GO) reprisal and retaliation.
e. The expurgation of the DA Form 67-8 covering the period 1 April 1996 through 1 September 1996 (hereafter referred to as the third contested OER) and the insertion of an appropriate letter that the report was removed because of GO reprisal and retaliation.
f. Correction of his Official Military Personnel File (OMPF) to reflect graduation from the Army War College, credit for Senior Service College (SSC) completion, and award of retirement credit for attendance at the Army War College DDE (Department of Distance Education).
g. Promotion to Colonel (COL) or, in the alternative, consideration for promotion to COL by a Special Selection Board (SSB).
h. Award of appropriate monthly and annual drill pay and retirement points from the time of his departure from the NYARNG in December 1997 until his reinstatement as an active Reservist.
i. Removal from the Retired Reserve with concurrent reinstatement in the active Reserve.
j. Continuing relief to correct his records if other related improper documents are discovered in his OMPF.
2. The applicant states, in a 29-page brief, that:
a. He was reprised against by Brigadier General (BG) Rxxx, the Commanding General (CG) of the NYARNG at the time. The applicant commanded the 1st Battalion, 105th Infantry, 27th Infantry Brigade, NYARNG, from 1995 to 1997. COL Bxxxxx, the brigade commander, after having received concurrence of this action from BG Rxxx relieved the applicant from command on 30 July 1996 during Annual Training (AT) at Fort Drum, NY. The brigade commander based the relief on his loss of confidence of the applicants ability to command because his battalion arrived at AT with approximately 96 Soldiers unaccounted for. COL Bxxxx placed a high priority on unit strength maintenance and accountability and had previously discussed the importance of accountability with the applicant prior to AT.
b. After the relief, BG Rxxx directed an Army Regulation (AR) 15-6, (Procedures for Investigating Officers and Board of Officers) investigation into the strength management and personnel loss reporting of the applicant's battalion. The applicant subsequently sought assistance from The Adjutant General (TAG) as well as the Inspector General (IG). In September 1996, TAG had a face-to-face with him regarding his allegations that the relief was improper because he (the applicant) had not been formally counseled prior to the relief. As a result, TAG felt the relief was poorly done, told him that no further adverse action would be taken against him, and directed the relief be changed to a reassignment. However, BG Rxxx ultimately issued him an LOR. The LOR resulted from the undoing of the relief for cause which was a result of his protected communication to TAG. In October 1996, TAG saw the LOR and directed the LOR not be filed in the applicants file.
c. The applicant ultimately retired in December 1997. He was later nominated for a senior position within the Department of the Army and underwent a background investigation during which it was discovered that the LOR is filed in his Military Personnel Record Jacket (MPRJ).
3. The applicant provides a 29-page brief (enclosed); copies of 6 affirmations from former GOs and/or a former Special Assistant to the Secretary of Defense; Volume I that contains 29 Exhibits; and Volume II that contains 63 Exhibits.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. For the purpose of processing this case, it is important to define the purpose and/or applicability of the MPRJ, the OMPF, and the interactive Personnel Electronic Records Management System (iPERMS). AR 600-8-104 (Military Personnel Information/Management Record) prescribes policies, operating tasks, and steps governing the OMPF, MPRJ, and iPERMS.
a. The MPRJ (eliminated for Active Army Soldiers) is a military personnel file (MPF) created by the military personnel office for Reserve Component (RC) Soldiers and maintained in accordance with AR 25-400-2 (The Army Records Information Management System (ARIMS)). The MPRJ is initiated when a member joins the RC and serves as the paper backup of automated personnel management systems. It is used to provide information to the local commander and to facilitate processing of local personnel actions and as a source document for the update of the OMPF and will not normally go forward with deploying forces. The unit commander for ARNG or U.S Army Reserve (USAR) members assigned to an ARNG or USAR unit initiates the MPRJ. The documents that are part of the MPRJ will be enclosed in a DA Form 201 (Military Personnel Records Jacket).
b. The OMPF is initiated when the Soldier becomes a member of any Army Component. The responsible custodian is determined by the Soldiers status during entry. Soldiers entering the ARNG will have their OMPF started and maintained by the Commander, Army National Guard Personnel Center, for officers and warrant officers, and the Soldiers State Adjutant General for enlisted persons. For USAR Soldiers, the OMPF will be created and maintained by the U.S. Army Human Resources Command (HRC), St. Louis, MO.
c. HRC established iPERMS (integrated Personnel Electronic Records Management System) for all Army Components (Active, USAR, ARNG) as a means for providing electronic document management of the OMPF. The iPERMS utilizes a web-based application with a unified user interface that provides encrypted, end-to-end, secure, remote access to, input to, and retrieval of, documents from the OMPF and other personnel folders/subfolders via the Army Knowledge Online (AKO) portal at any time from any place in the world. The iPERMS Records Management System provides storage of, controlled access to, and safeguarding of the OMPF and other personnel folders/subfolders residing in iPERMS in a safe and secure environment.
3. The applicant's records show he was born on 6 February 1950. He was appointed as a second lieutenant in the USAR and executed an oath of office on 5 June 1971. He subsequently entered active duty on 1 February 1972, completed the infantry officer basic and advanced courses, served in various staff and/or leadership positions, and he was promoted to captain (CPT) on 1 February 1976. He was honorably discharged on 24 October 1982.
4. His records further show he was appointed as an infantry CPT in the USAR on 7 June 1985. He subsequently applied for and was extended Federal recognition in the NYARNG on 31 October 1985. He was assigned to the 2nd Brigade, 42nd Infantry and was promoted to major on 13 August 1987.
5. On 1 October 1990, he was assigned to Headquarters and Headquarters Company (HHC), 107th Brigade, 42nd Infantry Division, NYARNG, as the S-1 (Personnel Officer). He was reassigned to HHC, 27th Support Center, NYARNG, on 1 August 1993, as an operations officer, and was then transferred to the position of Equal Opportunity (EO) Officer with the same unit on 1 September 1993. He remained in this position until he became a battalion commander on 1 October 1994. During the period mentioned in this paragraph, the applicant received the following OERs:
a. Annual, from 1 November 1990 through 31 October 1991, as the S-1.
b. Annual, from 1 November 1991 through 31 October 1992, as the S-1.
c. Senior Rater (SR) Option, from 1 November 1992 through 15 May 1993, as the S-1.
d. Change of Rater, from 16 May 1993 through 30 April 1994, as the S-1. This OER was for a period of 7 months and contains the entry "930516-930831, change of duty" under the explanation of non-rated periods.
6. He submitted a copy of a "Rater Option" OER (the first contested OER) for the period 16 May 1993 through 31 August 1993, for duties as the "Brigade Executive Officer." However:
a. This OER was not authenticated by his servicing military personnel office nor is it included in his MPRJ or OMPF.
b. The period covered by this OER overlaps that covered by his previous OER as the S-1.
c. The OER was dated by the rater on 1 May 1994, the SR on 17 June 1994, and by the applicant on 13 July 1994.
d. The narrative portion of his principal duty shows the entry "Although assigned as brigade S1, performed duties of Acting Executive Officer for the brigade."
7. On 30 August 1993, Headquarters, NYARNG, issued him a Notification of Eligibility for Retired Pay at age 60.
8. There is no indication in his records that he received an OER for the period from 1 September 1993 through 31 August 1994 while serving as the EO Officer.
9. On 1 October 1994, he was assigned as battalion commander, 1st Battalion, 105th Infantry, Schenectady, NY, and on 19 December 1994, he was promoted to lieutenant colonel (LTC).
10. During the month of October 1995, he received an Annual OER (not a contested OER, but relevant to the sequence of events), his first as a battalion commander which covered 12 months of rated time, from 1 October 1994 through 30 September 1995, for his duties serving as the "Battalion Commander" while assigned to 1st Battalion, 105th Infantry, 27th Infantry Brigade. His rater was the brigade commander, COL Scxxxxx, and his SR was the NYARNG commander, then BG Rxxx. The OER shows the following entries:
a. In Part Vb (Performance and Potential Evaluation), the rater placed an "X" in the "Usually Exceeded Requirements" block and in Part Vc, he entered the following comments:
[Applicant] is a dedicated, tactful and knowledgeable officer who labors hard to ensure his command meets Brigade and Army standards. However, a slight decline in the Battalions personnel and training readiness posture has occurred during this rating period. [Applicant] has the capability and must refocus his staff and subordinates commands on returning this command to its previous readiness condition.
b. In Part Vd, the rater placed an "X" in the "Promote With Contemporaries" block and in Part Ve, he entered the comments "With additional experience, [Applicant] could serve as a Brigade Commander."
c. In Part VIIa (Senior Rater), the SR placed an "X" in the second box from the top and placed an "X" in the "Yes" block to indicate that a completed DA Form 67-8-1 (OER Support Form) was received with this report and considered in his evaluation and review. He further entered in Part VIIb the comments "I am unable to rate this officer as I have not been the Senior Rater the required number of days. I have performed the administrative review as required."
The OER was signed by his rater and SR on 22 and 23 May 1996 and by him on an unknown date. However, a typewritten entry shows the date as "20 October 1995."
11. On 28 February 1996, he received a memorandum from the Commander, NYARNG, BG Rxxx, Subject: Official Reprimand (the contested LOR). The memorandum reads as follows:
On the weekend of 11-12 January 1995, you sanctioned the conduct of a social event under the guise of authorized training. You exercised poor judgment by obtaining government rations under false pretenses and used these rations to support that social event. You authorized the use of alcoholic beverages within the armory, in violation of Division of Military and Naval Affairs regulation and NYC law. Such actions are unacceptable. They are in violation of all legal and ethical standards for any officer, let alone an officer in a key position within our command structure. They bring into question you [sic] (your) personal and professional integrity, your judgment and, most certainly your fitness for continued service in positions of responsibility. This reprimand will be maintained for a period of one year, at which time this situation will be reviewed if further action is warranted. You are to acknowledge receipt below and return a copy of this memorandum to this headquarters, ATTN: ARCG, within ten days of receipt.
12. The applicant acknowledged receipt and placed his signature in the appropriate place but did not indicate the date. Additionally, on 26 April 1996, he submitted a detailed response to the letter of reprimand in which he refuted each of the asserted reasons for the LOR and requested its withdrawal.
13. There is no indication in the applicant's records that BG Rxxx considered the rebuttal and took final action on the LOR. The LOR is currently filed in his MPRJ but not in his OMPF.
14. During the month of April 1996, he received a change of rater OER (the second contested OER) which covered 6 months of rated time, from 1 October 1995 through 31 March 1996, for his duties serving as the "Battalion Commander" while assigned to 1st Battalion, 105th Infantry, 27th Infantry Brigade. His rater was the brigade commander, COL Scxxxxx, and his SR was the NYARNG commander, BG Rxxx. The OER shows the following entries:
a. In Part Vb, the rater placed an "X" in the "Usually Exceeded Requirements" block, and in Part Vc he entered the following comments:
[Applicant] remains a dedicated and committed commander, who continually strives to meet the Brigade, NYARNG, 10th Mountain Division and the Army objectives. Currently his command meets all established readiness objectives. In addition, he has begun the important process of refocusing his battalion on the #1 priority strength maintenance. To date, this fiscal year, [Applicants] command has shown a net change of +22. This officer did not furnish a completed DA Form 67-8-1.
b. In Part Vd, the rater placed an "X" in the "Promote With Contemporaries" block and in Part Ve, he entered the following comments:
With additional battalion level command, [Applicant] could serve as an O6 commander in the New York Army National Guard.
c. In Part VIIa, the SR placed an "X" in the second box from the top and placed an "X" in the "No" block to indicate that a completed DA Form 67-8-1 was not received with this report and considered in his evaluation and review. He further entered in Part VIIb the following comments:
[Applicant] met his readiness objectives. Officer not [sic] (is not) available for signature. There was no DA Form 67-8-1 attached to this report.
The OER was signed by his rater and SR on 20 and 22 May 1997, respectively. The rated officer's signature block contains the entry "Officer not available for signature." The OER was received by NYARNG military personnel officials and entered into his MPRJ on 12 June 1997. Additionally, a copy of this OER was forwarded to the rated officer on the same date.
15. On 2 July 1996, BG Rxxx approved a recommendation to award him the Meritorious Service Medal for meritorious service from 1 October 1994 to 31 March 1996. One of the achievements cited in the award recommendation reads "provided consistent and accurate strength maintenance guidance to his subordinate commanders and staff which allowed for consistent recruiting and retention growth and provided the battalion the foundation to meet NGB and the NYARNG's difficult strength maintenance milestones."
16. On 11 August 1996, by memorandum, the brigade commander, 27th Brigade, 10th Mountain Division (Light), Syracuse, NY, notified him that he was removed from command on 31 July 1996 and that this action was concurred with by the CG, NYARNG. This action was a result of his (the applicants) arrival of his command at AT 1996 with a reduction in strength from 619 to 527 over a period of two weeks. Prior to the arrival of his unit, he (the brigade commander) was aware of the potential losses of some 10 individuals, not the 92 that the unit projected on the first day of AT.
17. On 30 September 1996, by memorandum, BG Rxxx notified him that after a review of the circumstances of his relief from command, he had directed that the relief for cause be changed to reassignment. He further notified him that he would be transferred to Camp Smith Training Site (CSTS) effective 2 September 1996 and that official orders would follow. BG Rxxx also stated that his review of this relief indicated that no written documentation of counseling took place regarding his battalions strength, other than as indicated in his previous OERs, and because of that he had set aside the relief for cause. BG Rxxx also stated that the applicant did, however, fail to control his battalion's AWOLs (absence without leave) and losses which impacted on the readiness of the units entrusted to his leadership.
18. On 2 September 1996, he was reassigned from his position as the battalion commander to a new position as the Deputy Commander, Detachment 2, Headquarters, State Area Command, Peekskill, NY. Furthermore, on 1 October 1996 he was reassigned from his position as a deputy commander to a new position as installation services officer.
19. On 23 September 1996, by letter addressed to the Assistance Division, Office of the IG, Headquarters, Department of the Army (HQDA), he requested an inquiry/investigation into the manner of his purported relief in that, among other things, his rater (COL Bxxxxx) had not formally counseled him, the informal inquiry directed by BG Rxxx was flawed, and that BG Rxxx impaired his right to relief by disregarding the expeditious processing of his request for redress.
20. During the month of September 1996, he received a change of rater OER (the third contested OER) which covered 5 months of rated time, from 1 April 1996 through 1 September 1996, for his duties serving as the "Battalion Commander" while assigned to 1st Battalion, 105th Infantry, 27th Infantry Brigade. His rater was the new brigade commander, COL Baxxxx, and his SR was the NYARNG commander, BG Rxxx. The OER shows the following entries:
a. In Part IV (Performance Evaluation-Professionalism), the rater placed the number "1" (1 being a high degree and 5 being a low degree) in all 14 areas of professional competence with the exception of "Is adaptable to changing situations" and "Clear and concise on oral communications," where the rater placed a "2";
b. In Part Vb, the rater placed an "X" in the "Met Requirements" block and in Part Vc, he entered the following comments:
This officer did not furnish a completed DA Form 67-8-1 and refused to administratively review and sign the document. [Applicant] had, from a training standpoint, a relatively successful performance by the Battalion during this period. The unit did not meet the strength maintenance objectives during this period.
c. In Part Vd, the rater placed an "X" in the "Promote With Contemporaries" block and in Part Ve, he entered the following comments:
This officer is very intelligent; his talents could be fully utilized as a staff officer at a training site or as an assistant staff officer at the State level.
d. In Part VIIa (Senior Rater), the SR placed an "X" in the third box from the top and placed an "X" in the "No" block to indicate that a completed DA Form 67-8-1 was not received with this report and considered in his evaluation and review. He further entered in Part VIIb the following comments:
[Applicants] performance as a commander equaled his potential. There was no 67-8-1 attached to this report.
The OER was signed by his rater and SR on 11 April 1997 and 22 May 1997, respectively. However, the rated officer's signature block contains the entry "Officer not available for signature." The OER was received by NYARNG military personnel officials and entered into his MPRJ on 12 June 1997. Additionally, a copy of this OER was forwarded to him on the same date.
21. On 16 October 1996, BG Rxxx issued the applicant a General Officer LOR. However, a copy of this LOR is not filed in his MPRJ or his OMPF. It reads as follows:
Your recent reassignment from the 1st Battalion, 105th Infantry, to Camp Smith Training Cite, was a direct result of your failure to control the AWOLs and your lack of attention to strength maintenance throughout the battalion. Your actions jeopardized the readiness posture of the battalion and 27th Brigade. This letter of reprimand is being imposed as an administrative measure and not as punishment pursuant to nonjudicial punishment under the New York State Code of Military Justice. I intend to file this letter with your personnel records for a period of one year. You have ten (10) days from receipt of this letter to submit rebuttal comments as set forth in paragraph 3-6 of AR 600-37.
22. On 21 February 1997, he requested to be awarded Functional Area (FA) 90 (Logistics). However, on 1 May 1997, he was notified that his request was not favorably considered as he had no combat support assignments that qualified him for FA90 under the applicable regulation; his OERs did not reflect the performance of logistical support functions despite his attempts to extract individual sentences of context of those evaluations; his contracting experience did not meet the requirements of FA90; and he had not served in a logistics position for at least 24 months. (The command required 24 months time served in FA90, a much stricter standard than that described in the applicable regulation which requires 12 months).
23. On 18 March 1997, he submitted a 6-page brief requesting BG Rxxx withdraw the General Officer LOR or alternatively be given sufficient time to prepare a response.
24. On 2 April 1997, by memorandum to TAG, NYARNG, he requested the General Officer LOR be expunged from his records. He stated that the letter was duplicative, vexatious and harassing; and the procedure followed in providing him with the letter demonstrated bias, arbitrariness, capriciousness, and abuse of discretion.
25. On 11 April 1997, by letter to the Department of Defense (DOD) Hotline, he requested an investigation be launched into the LOR, his relief from command, his denial of FA90, and a missing OER.
26. On 24 June 1997, TAG, NYARNG, announced the results of the 1997 Battalion/Brigade Command List Selection Board (CLSB) which convened on 3 May 1996 and reviewed records of all officers who met the requirements of the applicable NYARNG regulation. The records review consisted of the Command List Selection Board Worksheet, the NYARNG Officer Record Brief, the DA Form 2-1 (Personnel Qualification Record), and the OERs. Total Points from the CLSB were used to develop the Order of Merit Lists (OMLs). The results were as follows:
a. Brigade Command shows 5 COLs and 14 LTCs met the minimum requirements for consideration. The applicant's name was listed as a Brigade Commander selectee.
b. Senior Service School shows 2 COLs and 19 LTCs met all prerequisites for nomination. His name was not listed as a Senior Service School selectee.
27. On 5 October 1997, by memorandum, the FA90 Proponent, at the US Army Combined Arms Support Command and Fort Lee, Combat Service Support Personnel Proponency Directorate, Fort Lee, VA, provided information about qualification for FA90. He stated that:
a. Chapter 46 of DA Pamphlet 600-3 (Commissioned Officer Development and Career Management) described the FA90 program and explained the qualification in detail. FA90 was available to logistics officers with specialty codes (SCs) or multifunctional area (MFA) of the following: Transportation Corps-SC 88, Ordnance-SC 91, Quartermaster, SC 92, Medical Services Corps, MFA 70, and Aviation Logistics, SC15. FA90 was not available to officers of any other branch. The award of FA90 did not imply that officers were qualified MFA logisticians; and
b. RC LTCs must meet the basic branch qualifications in one of the listed SCs, meet the educational requirements, and successfully complete 12 consecutive months in a FA90 position.
28. On 7 July 1997, by letter to TAG, NYARNG, he requested a Commanders Inquiry (CI) to look into substantive and administrative errors in the two contested OERs.
29. On 9 October 1997, by letter, TAG, NYARNG, notified him that he conducted a CI to look into the two contested OERs and after a review, he found that no serious errors, inaccurate or untrue statements, or wrongdoing had occurred.
30. On 16 November 1997, having completed 20 qualifying years for non-regular retirement, and due to the inactivation or reorganization of his unit, the applicant was notified that he was required to be reassigned. However, he was also informed that he could choose any of the following options:
a. A valid assignment in another ARNG unit.
b. If not offered a valid assignment, he could request:
(1) Transfer to the Retired Reserve with entitlement to Special Separation Pay (an annual payment for a period of up to five years; it does not reduce his retired pay at age 60); or
(2) Transfer to the USAR (Individual Ready Reserve, or IRR).
c. On a case-by-case basis, assignment to another unit in an overstrength status for a period of 1 year.
31. On 23 November 1997, he certified that he had completed at least 20 qualifying years for non-regular retirement and voluntarily elected a transfer to the Retired Reserve with entitlement to Special Separation Pay.
32. On 1 December 1997, TAG, NYARNG, published Order 336-046, directing the applicants honorable separation from the ARNG and transfer to the Retired Reserve, effective 1 December 1997.
33. On 5 March 1998, by letter to TAG, NYARNG, he resubmitted a request for a CI to look into substantive and administrative errors in the two contested OERs.
34. The 1998 RC Selection Board (RCSB) convened on 14 July 1998 and adjourned on 14 August 1998. The "First Time Considered" zone of consideration was those LTCs with a date of rank from 2 January 1994 through 1 January 1995. This board was approved on 14 December 1998.
35. On 19 March 1998, HQDA IG issued a Report of Investigation (ROI). The ROI shows the following findings:
a. The allegation that BG Rxxx reprised against him by improperly issuing him an LOR was substantiated; and
b. The allegation that COL Bxxxxx improperly relieved him from command; the allegation that COL Bxxxxx or BG Rxxx denied him due process; and/or the allegation that BG Rxxx withheld favorable action by interfering in his denial of FA90 were not substantiated.
36. On 30 December 1999, HQDA IG issued an addendum to the ROI that modified the original finding, based on new evidence (can be found in the ROI addendum and will not be further enumerated here). The addendum shows the following findings (applicable to the applicant): the allegation that BG Rxxx reprised against him by improperly issuing him an LOR was changed from substantiated to not substantiated.
37. On 12 May 2000, the Acting Chief of Staff, Division of Military and Naval Affairs (DMNA), NYARNG, issued the applicant revised results of the CI regarding the two contested OERs. Both OERs were determined to contain numerous substantive and administrative errors which could not be ministerially corrected and therefore required their expurgation. The Acting Chief of Staff recommended he submit a request to the Chief, National Guard Bureau (NGB) requesting both OERs be expurgated from his records. However, there is no indication that the applicant submitted a request to NGB to request removal of the OERs. Among the errors that the CI determined are the following:
a. Administrative errors in the first contested OER (1 April 1996 through 1 September 1996) include:
(1) the rater did not have sufficient time to rate the applicant;
(2) the applicant was present and available to review and sign the OER;
(3) the OER incorrectly stated that a support form was not provided;
(4) the OER was tardy; and
(5) the OER did not list non-rated time.
b. Substantive errors in the first contested OER (1 April 1996 through 1 September 1996) include:
(1) the OER contains large blank spacing (narrative gimmicks, wide spacing); and
(2) the OER contains short comments (brief and trite phrases) rendering it incomplete, unrealistic, and inaccurate.
c. Administrative errors in the second contested OER (1 April 1996 through 1 September 1996) include:
(1) the rater did not have sufficient time to rate the applicant;
(2) the applicant was present and available to review and sign the OER;
(3) the OER incorrectly stated that a support form was not provided;
(4) the OER was tardy; and
(5) the OER did not list non-rated time.
d. Substantive errors in the second contested OER (1 April 1996 through 1 September 1996) include:
(1) the "2" rating in Part IV is not substantiated;
(2) the SR rating of third block was not supported;
(3) the OER contains large blank space between texts;
(4) the OER contains short comments (brief and trite phrases) rending it incomplete, unrealistic, and inaccurate.
(5) the rater failed to counsel the applicant.
e. the CI also concluded that there is no regulatory requirement that a CI must be conducted within 120 days after the through date of an OER. However, his request for a CI was delayed through no fault of his.
38. In the spring of 2005, he was informed by a Federal Bureau of Investigation investigator that there was a letter in his records, located at HRC-St. Louis, relating to an extract from a counseling letter during his service with the NYARNG.
39. During the period from 2005 through January 2009, he was considered or held a position within HQDA (Assistant Secretary of the Army (Manpower and Reserve Affairs (M&RA)). He states that this precluded him from applying for relief at the time.
40. The applicant submitted the following documents:
a. Extracts of several newspaper editorials, including the New York Times, Army Times, USA Today, Syracuse Post, and several others regarding allegations that many ARNG units had inflated the number of Soldiers in their ranks.
b. Extracts of several legal case summaries and/or decisions by various courts regarding due process, promotions, letters of reprimand, reinstatements, training, etc
c. Six affirmations from five former officers and one former Department of Defense (DOD) civilian as follows:
(1) MG Jxxxx (Retired), former commander of the NYARNG, states that his affirmation is based upon his direct knowledge of the facts, information he believes, and documentary evidence as he was the applicants SR.
(a) He knew the applicant over the years and continued to observe his professional development and his recollection is that his commanders spoke highly of him and his accomplishments. He adds that upon his ascendency to command of the NYARNG in 1992, he instituted a policy and procedure for senior officers to be vetted by a board of GOs as to their ability for battalion and brigade command. Previously, the process was selection by commander interviews. One of the first officers selected by this process for infantry battalion command was the applicant. In late 1994, the applicant assumed command of his battalion. He also adds that he discussed the applicants progress with the brigade commander and they both agreed that his manner of performance met the expectations and it stayed at a high level. He saw the applicant as an easy selection for COL and brigade command.
(b) His contemporaneous assessment was that the applicant was one of top three battalion commanders in the NYARNG. His unit had one of the highest retention rates and training attainments within the State. He personally observed his companies training at the U.S. Military Academy and at Camp Smith and can state unequivocally that the applicant ably forged a superb command by his personal energy, effort and charisma. His performance of duty demonstrated that he was a future star in the NYARNG. He relinquished command in July 1995 and his successor was not named until October 1995. Under these circumstances, it was his practice and NYARNG policy for officers due an annual report to be senior rated by him. He did not have an opportunity to senior rate the applicant for unknown reasons. However, if he had that opportunity, he would have rated him in "Top Box" and commented as follows:
[Applicant] is a superb performer who in his first year of command has renewed the spirit of his storied battalion. Although his command stretched from the Atlantic to the Adirondacks, he dynamically reached out to each and every Soldier. He turned around the personnel retention picture at his battalion and set the standard for his fellow battalion commanders. I personally have observed his battalion in the field and. competed with him on the pistol range. Whatever the training event or tactical exercise, he brought unequal accomplishment and clear judgment to battalion command. I strongly support him for senior service school, full colonelcy and Brigade command.
(2) BG Sxxxx (Retired), former commander CSTS (Camp Smith Training Site) also states he had known the applicant for many years. When the applicant was reassigned to his command at Camp Smith, the applicant sought advice from him regarding the inappropriate actions taken by his chain of command. BG Sxxxx adds that the applicant was transferred to his command as a deputy commander but he later transferred him to a logistics officer position and endorsed his application for FA90. He believes that the applicant was inappropriately held back from promotion to COL as he compares with the best officers.
(3) BG Gxxxxx states he served in senior positions in the NYARN DMNA. In his role as Post Commander of the State's principal training facility for the ARNG and USAR and as Legislative Assistant to TAG and later as a flag officer and military aide to the Governor, he had personal knowledge of the information relating to the applicant and supports his application for certain relief.
(a) Prior to the summer of 1996, he had known the applicant based on his reputation as a primary staff officer for COL Sxxxx who earlier had served with him and brought the applicant to his attention early on. He recalls that in August 1996, there was an attempt to relieve the applicant from battalion command and he learned that his commander was attempting to relieve the applicant of command as a result of an alleged erroneous report strength involving his battalion. The applicant challenged the allegations in detail and had subsequently sought a personal interview with TAG. He also learned that his chain of command was seeking to preclude an opportunity for him to meet with the TAG. The issues evolved around a seemingly routine and straightforward strength report that resulted in an allegation that his forecasted unit strength was erroneous.
(b) The applicant demonstrated to his (the author's) satisfaction that he had in fact submitted an accurate personnel strength report and pointed out that the discrepancy resulted from the failure of the Brigade and State headquarters to discharge nonperformers in the appropriate and timely manner called for in the Army regulation. He subsequently had other conversations with senior officers, including the then Chief of Staff, to ascertain the relevant facts and learned that they were in agreement with the applicants assessment. He also spoke to BG Rxxx who had directed the negative action and who insisted that the applicant had to speak to him before he would allow a meeting with the TAG. TAG was also aware of the situation and assured him that he would meet with the applicant regardless of whether or not he met with BG Rxxx. The applicant subsequently met with TAG in October and the TAGs decision was to modify the applicants transfer as a routine change of command and determine that he would conclude his tenure in command as scheduled. Additionally, he would be reassigned as Deputy Commander and Logistics Officer at Camp Smith. The applicant also received assurances that he would be protected from reprisal by BG Rxxx or others. TAG subsequently confirmed the essential details of this discussion with him.
(c) In mid-October 1996, the applicant informed him that he had received a backdated letter from BG Rxxx indicating that he had reversed his earlier action. He had a subsequent conversation with the chief of staff who related that he expected a fall-out from BG Rxxxs actions and an anticipated IG investigation. He also cautioned the applicant that BG Rxxx may try to again reprimand him during the next six months and suggested that he keep his commander fully informed. In March 1997, he was told by the applicant that BG Rxxx attempted to present an LOR to him relating to the attempted relief. He again contacted several senior DMNA officials and TAG and his recollection is that TAG directed that BG Rxxx cease his unsupportable actions and withdraw the letter. Shortly thereafter, he learned of the IG investigation. Certain of these allegations against BG Rxxx were apparently substantiated as he would retire within the year. At the end of the 1997, the applicant transferred to the Retired Reserve. It subsequently developed that the issue of personnel management reflected in the incident was reflective of a much larger issue in NYARNG.
(d) He adds that he is convinced from the onset that this incident was a particularly egregious case of petty personal animosity against one of the most competent and dedicated officers he had come to know in the ARNG. From the facts available to him, it was clear that he was well qualified for promotion to the rank of COL and perhaps flag rank, and that he was clearly being denied promotion for maintaining the highest standards of personal integrity. It was also the applicants misfortune to have served in the NYARNG during a period when there were long standing and serious issues of integrity, corruption, and lack of professionalism among the senior leadership at the state level.
(4) BG Kxxxx (Retired) states that at all relevant times, he was a senior officer in the NYARNG.
(a) From December 2000 to November 2003, he commanded the 53d Troop Command and then became the CG, NYARNG, the same position held by BG Rxxx. Prior to these assignments he served in State Headquarters for six years. Although he was not directly involved in the action, it was common knowledge that in 1996 there was an attempt to relieve the applicant as the battalion commander. The purported justification related to personnel strength reporting at AT. His recollection is that the applicant sought and was granted relief by TAG. Subsequently, in March 1997, an attempt was made to present the applicant with an LOR. TAG directed that detrimental action cease against the applicant. There followed an IG investigation for reprisal. The applicant had showed him a copy of the report substantiating the allegations, in part. The applicant concluded his tenure in command on schedule and was assigned as the Deputy Commander and Logistics Officer, Camp Smith under the command of COL Sxxxxx. At the end of 1997, the applicant transferred from the NYARNG pending retirement.
(b) He has seen a copy of the IG Report dated May 2002. This inquiry by military and State authorities determined that a senior officer in the DMNA, beginning no later than 1996, had systematically held up the discharge packets of non-performing personnel. By this expedient, the strength of the ARNG was falsely inflated which gave a favorable portrayal of the officer's performance. The failure to discharge non-performing personnel was the issue that the applicant had uncovered in some measure. The inquiries brought out details of the lengths that several DMNA personnel went to hide this problem from senior leadership. By 2000, after extraordinary effort, the inflated personnel data was reconciled. However, the reputation of DMNA suffered. Furthermore, he believes that the applicant would have been selected for COL and received evaluations that highlighted his fortitude and his value to the NYARNG and the Army. As the Commander, NYARNG, he would have selected the applicant for brigade command.
(5) Mr. Oxxxxx is a former Special Assistant to the Secretary of Defense for White House Liaison and head of the White House Liaison Office at DOD. He first served as Deputy Special Assistant from August 2002 to July 2003 and then as Special Assistant from July 2003 to January 2009. In that assignment, he reported directly to the Secretary of Defense and was a member of the Immediate Office of the Secretary. He was in daily contact with the Presidential Personnel Office at the White House. He has personal knowledge of the information that appears herein. He enthusiastically supports the applicants request. The applicants resume was brought to his (the authors) attention in 2003 by another senior advisor to the Secretary of Defense. He had previously known the applicant and knew that he was the caliber of individual who might serve with distinction at the Pentagon. During the course of his interview, the applicant told him that he had brought an IG complaint against his CG in 1996 and that he had previously brought to the attention of TAG the fact that ARNG personnel strength numbers were being improperly inflated through leaders failure to discharge non-performing Soldiers in a timely manner. Thereafter, he became the subject of a reprisal by the CG. He then provided exhaustive documentation corroborating that the IG had documented the occurrence of reprisal actions. He has strongly urged the applicant to apply to the ABCMR for all available relief. The 1996 letter demonstrates that senior officers had not treated him properly and had injured his Reserve officer career as punishment for reporting a secret scheme to inflate personnel status. Thus, he recommended that the applicant seek removal of the OERs during the relevant period, the insertion of an appropriate explanation, and consideration for promotion to COL.
(6) COL Gxxxxx (Retired) states that he supports the applicants request for relief. He was a senior officer in the NYARNG as the Commander, 10th Brigade, from May 1993 to October 1996.
(a) In May 1993, he appointed the applicant as his Executive Officer (XO). He had been the Brigade S-1. He adds that he faced the daunting task of consolidating two O-6 Headquarters - an Infantry Brigade and a Support Group. At the same time, the three infantry battalions consisting of 15 companies had to be reassigned, re-stationed, consolidated or disestablished. This complex activity required close control of personal, organizational and station property, and the movement of almost 2,000 personnel to assist him as his full-time staff consisted of one personnel warrant and one Quartermaster Corps Major, who was retiring. He therefore assigned the applicant to act as his XO.
(b) During the following four months, the applicant spent an inordinate amount of time, including his AT period, assuring that the combat arms battalions properly accounted for their property. He assured that those infantry commands, which were retained as infantry units but reallocated to a sister brigade, were properly accessioned without the loss of personnel. Additionally, he took an active part in assuring that those units which had to be redesignated out of Infantry began training qualification programs. For senior personnel, he was responsible for reallocating these Soldiers into appropriate positions so as to not lose their organizational expertise. Most importantly for the soon to be stood up 107th Corps Support Command (CSG), the applicant was intimately involved in filling key positions with the most qualified personnel. Again, he had to assure that personnel were DA certified or that they were in a program leading to full qualification. He effected coordination with State National Guard Headquarters and DA (Chief, Military History Division) to assure that the lineages and Honors of the old Seventh New York were properly transferred to the 10th CSG.
(c) He was determined that the applicants extraordinary effort be acknowledged in his officer evaluation report. Thus, he directed the warrant officer to prepare a "Rater Option" OER. In the NYARNG, M-Day officers very rarely are so acknowledged by their chain of command. However, under the circumstances, it was well deserved. He recalls that he spoke with the SR who endorsed the decision although he did not have the requisite supervisory time to add his evaluation. In mid-winter, the OER was finally sent forward to 42d Division Headquarters for SR comment and transmittal to State Headquarters. The applicant informed him that he received a copy of his special OER shortly after he left command in the fall of 1994. At the time, the applicant had just taken command of his infantry battalion and awaited promotion to LTC. However, when he retired in 1997, he conducted a review of his microfiche OMPF. Therein, he did not find the special OER posted and told him that he contacted the State personnel officer who refused to correct this obvious improper exclusion. The State personnel officer asserted that the State headquarters had not prepared orders to assign the applicant as an XO and that the applicant already had an OER in the records covering the period. While the State headquarters fills billets, with the exception of command positions, commanders determine where an officer's duty is performed. Hence, he directed, on Brigade orders, the applicant serve as the XO. The applicant then provided a copy of his next OER and he, the author, was the SR. The period covered by the XO OER is designated as "change of duty."
(d) This is a mistake caused by State headquarters which prepares the OER administration. State headquarters had failed to account for the XO OER. The important point is that there is no overlapping rating. This OER was for the period 1 September 1993 to 30 April 1994. Correcting this report would merely require removing the notation in Part I, q. For the applicants outstanding performance of duty, he decided to originate a rater option OER. This is well within his authority as an officer's rater whether the applicants position is denominated as the S-1 serving as XO or as the XO. There was no sound reason for State headquarters to have failed to process this document. Furthermore, there was no logical reason for the State personnel officer to summarily reject correcting the applicants OER record in January 1998. He concludes that if the applicants career had not been prematurely terminated by the hindrance of certain senior NYARNG personnel, he would have been selected for COL and appointed to brigade command in the NYARNG.
41. An advisory opinion was obtained on 17 March 2010 in the processing of this case. An NGB official recommended the following:
a. Removal of the irregular, illicit, and inappropriate letter inserted into his personnel file and removal of the 1996 counseling letter inserted improperly into his file.
b. The Officer Special Review Board (OSRB) determine appropriate action with respect to the OERs from 1 October 1995 through 31 March 1996 and 1 April 1996 through 1 September 1996. The official noted that NYARNG non-concurs with this recommendation because they feel there is no justification for this action.
c. Disapproval of correction of his OMPF to reflect graduation from the Army War College because it occurred in 2009, some 12 years after his retirement in 1997.
d. No action be taken with respect to inserting of an improperly withdrawn OER and adjusting the rated period for contemporaneous reports.
e. Disapproval of his request for an SSB because he did not meet the requirements for promotion to COL and was never considered by a COL board.
f. Disapproval of his reinstatement into the ARNG; he chose to voluntarily retire.
g. Approval of other relief deemed appropriate.
42. A copy of this advisory opinion was forwarded to the applicant on 18 March 2010. He submitted a rebuttal (116 pages) on 7 May 2010 wherein he makes the following arguments:
a. NGB and NYARNG have colluded to harm him.
b. The NYARNG letter to NGB is a tissue of lies based on:
(1) This letter is defective;
(2) No inquiry looked into the filing of the 1996 CL
(3) The 2000 IG report failed to provide him with due process.
(4) The IG did not have the regulatory power to reopen the 1998 ROI.
(5) The 2000 ROI is predicated on impeachable statements.
(6) The NYARNG letter's reference to the 2000 report is irrelevant to his case.
(7) The author of the NYARNG letter may not have the authority from his chain of command to respond to NGB.
(8) The NYARNG letter author has personal animosity which may require recusal.
(9) The NYARNG letter failed to provide any relevant proof.
(10) The NYARNG letter provides no justification for rejection of his request for expurgation of two OERs.
(11) The NYARNG letter misconstrues his constructive discharge.
(12) The NYARNG letter takes issue with this Board's power to issue retirement points.
(13) The NYARNG letter failed to address the placement of the 1996 CL in his OMPF.
c. The "Revised" NGB opinion provides little useful analysis:
(1) The NGB advisory opinion is inadequate and incomplete.
(2) NGB fails to address the appropriateness of the War College credit.
(3) NGB fails to address the OER which was not inserted into his file.
(4) NGB is inconsistent in supporting the correction of the two OERs yet not recommending promotion consideration.
(5) NGB completely misconstrues his Active Reserve request as an attempt to return to the ARNG.
d. The NGB "ex parte" process is flawed.
e. The following supplemental relief is requested:
(1) The ABCMR institute procedures to safeguard the "Protected Identity of individuals.
(2) NGB and the NYARNG should be barred from providing any further input or any sur-reply brief (additional reply to his case).
(3) He should be provided retirement credit for the maximum number of retirement points for distant learning as he habitually far exceeded the amount creditable each year.
(4) The ABCMR should demand that NGB direct the NYARNG to return all copies of his application to the Board for disposal.
(5) Continued relief to correct his record if other related improper documents are discovered in official military records.
43. AR 600-37 (Unfavorable Information) provides in pertinent part that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made. A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer level authority and are to be filed in the performance section. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the OMPF then the recipient's submissions are to be attached. Once filed in the OMPF the reprimand and associated documents are permanent unless removed in accordance with chapter 7.
44. A memorandum of reprimand intended for filing in the MPRJ may be retained for no more than 3 years and must state the length of time it is to be retained. Chapter 7 of the AR 600-37 provides that once filed in an OMPF a document is presumed to have been administratively correct. Appeals to the Department of the Army Suitability Evaluation Board (DASEB) to relocate a reprimand, admonition, or censure (normally for Soldiers in pay grade E-6 and above) are based on proof that the intended purpose has been served and that transfer to the restricted section would be in the best interest of the Army. The DASEB will return appeals unless 1 year has elapsed and at least one nonacademic evaluation has been received since the letter was imposed. If the appeal is denied the DASEB memorandum of denial will be filed in the performance section, the appeal itself and any associated documents will be filed in the restricted section.
45. AR 623-105 (Officer Evaluation Reporting System), effective 30 April 1992, established the policies and procedures for the Officer Evaluation Reporting System. In pertinent parts, this regulation stated:
a. Paragraph 3-5 states that when it is brought to the attention of the commander that a report rendered by one of his or her subordinates may be illegal, unjust, or otherwise in violation of AR 623-105, he or she would look into the matter. The commander will conduct a CI and confine his or her inquiry to matters relating to the clarity of the report, the facts contained in the report, its compliance with the regulation, and the conduct of the rated officers and rating officials. The commander does not have authority to direct that an evaluation be changed and he/she may not use command influence to alter an honest evaluation of an officer by a rating official.
b. Paragraph 4-11c(5) states that each rating official signs and dates the report before sending it to the next rating official of HQDA. Their signatures verify all entries on the form at the time of their respective signatures. Paragraph 4-21d states that any verified derogatory information may be entered on an OER. While the fact that an officer is under investigation may not be mentioned in an OER until the investigation is completed, this does not preclude the rating chains use of verified derogatory information.
c. Paragraph 4-13 stated that Part IV of the DA Form 67-8 is prepared by the rater and provides instructions on the preparation of Part IVa. (Professional Competence). Specifically, the regulation requires rating on a scale of 1 to 5 (1 being high) to portray how well each statement describes the rated officer. The regulation also states that any comments on the strengths or weaknesses will be placed in the comments part of block b and that comments are only mandatory to explain or clarify ratings of 4 or 5 in Part IVa.
d. Paragraph 4-27 states that, among other reasons, any report with ratings or comments that in the opinion of the SR are so derogatory that the report may have an adverse impact on the rated officers career will be referred to the rated officer by the SR for comment. Paragraph 5-30 of AR 623-105 states that the primary purpose of the CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the OER is accepted at HQDA. However, in these after-the-fact cases this paragraph is not intended to be a substitute for the appeals process.
e. Paragraphs 5-32 and 9-2 provides that an OER accepted by HQDA and included in the official record of an officer is presumed to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.
f. Paragraph 8-24c (Rater Option), when one of the conditions described in other paragraphs occurs but there is less than 120 calendar days (excluding nonrated periods) in the rating period, a report may be submitted at the option of the rater. However, the rated officer must have served continuously under the same rater in the same position, for 120 or more calendar days in a previous rating period.
g. Paragraph 8-5 states that the State TAG and commanders will ensure that completed reports arrive at the ARNG Personnel Center not later than 120 calendar days after the Through date of the report due to the importance of the OER to many personnel actions. Paragraphs 8-6a and 8-6a(1) state that the Chief, NGB will exercise final review authority on all Army NGB evaluation reports arriving at the ARNG Personnel Center to include returning to States those reports that appear to be in error or violate the provisions of this regulation. Paragraph 8-6b(1) states that on arrival at the ARNG Personnel Center, OERs will be reviewed. The original report (if it appears to be administratively correct) will be filmed onto the rated officers OMPF. The original report will then be returned to the State where it is put in the officers State management file.
h. Paragraph 8-17 states that the DA Form 67-8-1 is used only by the rated officer and the rating chain. It is used by the rated officer to describe his principal duties, objectives, and significant contributions. While such information should be jointly developed, it is not necessarily the view of any of the rating officials.
i. Paragraph 8-18b states that non-rated periods must be accounted for on the OER. These are periods of less than 120 calendar days which do not include attendance at an AT period of at least 15 days and periods of less than 120 days during attachment to another organization that do not include attendance at an AT period of less than 15 days. When it is determined that a period of ARNG service, regardless of length, has not been properly documented on the OER, corrective action must be taken by the Soldier's personnel office.
j. Paragraph 8-21 states that ARNG OERs may be optional or mandatory and are further divided into those with a 120-calendar day minimum rating period and those with an other than 120-day requirement. To determine if a rated officer meets minimum calendar day requirements, non-rated periods occurring during the rated period must be deducted from the total number of days he/she has served in the same position under the same rater, during the same rating period. A change of rater report is submitted whenever the designated rater is changed as long as the minimum rater qualifications are met. A report is mandatory when the rated officer ceases to serve under the immediate supervision of the rater.
k. Paragraph 9-7 states that the burden of proof in an appeal of an OER rests with the applicant. Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.
46. AR 623-105 provides for a CI in cases where it is brought to the attention of a commander that an OER rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation. The primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record. A secondary purpose of a CI is to obtain command involvement in clarifying errors or injustices after the OER is accepted at HQDA. The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain. The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official.
47. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers of the U.S. Army Reserve (USAR). This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individuals non-selection by a promotion board and, had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.
a. Paragraph 3-19 contains guidance on promotion reconsideration boards. It states, in pertinent part, that in order to find a material error, a determination should be made that there is a fair risk that one or more of the following circumstances was responsible: (1) The record erroneously reflected that an officer was ineligible for selection for educational or other reasons when in fact the officer was eligible for selection when the records were submitted to the original board for consideration; (2) One or more of the evaluation reports seen by the board were later deleted from an officer's OMPF; (3) One or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer's OMPF; (4) One or more existing evaluation reports as seen by the board in an officer's OMPF were later modified; (5) Another person's adverse document had been filed in an officer's OMPF and was seen by the board; (6) An adverse document, required to be removed from an officer's OMPF as of the convening date of the board, was seen by the board; (7) The Silver Star or higher award was missing from an officer's OMPF; or (8) An officer's military or civilian educational level, including board certification level for AMEDD officers, as constituted in the officer's record (as seen by the board) was incorrect.
b. Paragraph 3-19 also states the following list of factors that will normally result in a material error determination: (1) Officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses. If eligible, this person will be considered by the next regularly scheduled selection board. A special board will not be used when (1) an administrative error was immaterial, or (2) the officer in exercising reasonable diligence could have discovered and corrected the error or omission in the OMPF or the officer could have taken timely corrective action; and (3) letters or memoranda of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer's OMPF.
48. Army Regulation 15-185 governs operations of the ABCMR. Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR. The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his records should be corrected by removing the LOR and any other related documents from his record; insertion of an OER covering the period 16 May 1993 through 31 August 1993; removal of the OERs covering the period 1 October 1995 through 31 March 1996 and 1 April 1996 through 1 September 1996; showing graduation from the Army War College; receiving credit for SSC completion and award of retirement credit for attendance at the Army War College DDE; promotion to COL or consideration by an SSB; award of appropriate monthly and annual drill pay and retirement points from the time of his departure from the NYARNG in December 1997 until his reinstatement as an active reservist; removal from the Retired Reserve with concurrent reinstatement in the active Reserve; and continuing relief to correct his records if other related improper documents are discovered in his OMPF.
2. The applicants request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by him are sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.
3. With respect to the LOR, dated 28 February 1996, the evidence of record shows he acknowledged receipt of the LOR and placed his signature in the appropriate place but did not indicate the date. The evidence of record also shows that on 26 April 1996, he submitted a response to the LOR in which he refuted each of the asserted reasons for the LOR and requested its withdrawal. However, there is no indication in his records that BG Rxxx considered the rebuttal and took final action on the LOR. Because there is no evidence that BG Rxxx, or any of his staff, personally placed this LOR in his MPRJ, it should not have been filed there and should be removed immediately.
4. With respect to the first contested OER, the evidence of record shows he received two overlapping OERs as follows:
a. He received a "Change of Rater" OER from 16 May 1993 through 30 April 1994, as the S-1. This OER was for period of 7 months and contained the entry "930516-930831, change of duty." This OER is correctly filed on his OMPF.
b. He received a "Rater Option" OER (the first contested OER) from 16 May 1993 through 31 August 1993, as the Brigade XO. The regulation provides that when the rating period is less than 120 calendar days (excluding nonrated periods), a report may be submitted at the option of the rater. However, the rated officer must have served continuously under the same rater and in the same position, for 120 or more calendar days in a previous rating period.
c. Although he had previously worked for the rater who rendered the XO OER, the applicant was previously rated as an S1; not an XO under this rater. Therefore, the rater in the contested OER could not have rendered a "Rater Option" OER since the applicant had not served continuously under him in the same position for 120 or more calendar days in a previous rating period. This may explain why the NYARNG rejected the "Rater Option" OER and why it is not included in his records. This OER should not be inserted into his records.
5. With respect to the second contested OER covering the period 1 October 1995 through 31 March 1996:
a. Although he stated that he was reprised against, the initial ROI only substantiated the allegation pertaining to the LOR. It did not substantiate a reprisal with respect to this OER. Furthermore, although the CI determined that this OER contained administrative and substantive errors and recommended its removal from his records, and although it is noted that the rating officials did not complete the contested OER in a timely manner, that an OER support form was submitted with this report, and that the applicant was available for signature, those are harmless errors and, by themselves, do not negate the validity of the report or show unjustness in the ratings.
b. This was neither a referred OER nor contained any negative or derogatory information. There is insufficient evidence which shows this contested OER is substantively inaccurate and did not accurately reflect his performance or potential or that his rater and/or SR did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner. Aside from his dissatisfaction, the applicant did not provide sufficient clear and convincing evidence to justify the removal of this contested OER. He does not provide sufficient evidence to show he performed at a level above those ratings.
c. The applicant knew or should have known that he had recourse to the appeal process. He failed to avail himself of that recourse. Based on the regulation in effect at the time, despite the minor administrative errors, the second contested OER is valid as constituted and the applicant did not meet the burden of proof to justify its removal. Therefore, there is no basis for removal of this contested OER.
6. With respect to the third contested OER covering the period 1 April 1996 through 1 September 1996, this OER was rendered after the sequence of events that started with the applicant's relief from command, reversal of the relief to a reassignment, and culminated in his protected communication with TAG.
a. The ROI did not substantiate a reprisal with respect to this OER. Furthermore, although the CI determined that this OER contained administrative and substantive errors and recommended its removal from his records, the untimely submission of this OER and the incorrect entries that an OER support form was not submitted with this report and the fact applicant was available for signature are harmless errors that do not negate the validity of the report or show unjustness in the ratings.
b. Again, this OER was neither a referred OER nor contained any negative or derogatory information. There is insufficient evidence which shows this contested OER is substantively inaccurate and did not accurately reflect his performance or potential or that his rater and/or SR did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner. Aside from the harmless administrative errors and his dissatisfaction, he did not provide sufficient clear and convincing evidence to justify its removal.
c. The applicant knew or should have known that he had recourse to the appeal process. He failed to avail himself of this recourse. Based on the regulation in effect at the time, the third contested OER is correct as constituted and the applicant did not meet the burden of proof to justify removal of this contested OER. Therefore, there is no basis for removal of this contested OER.
7. With respect to FA90, the applicant did not meet the requirements for this FA:
a. He was notified that his request was not favorably considered as he had no combat support assignments that qualified him for FA90 under the applicable regulation; his OERs did not reflect the performance of logistical support functions; his contracting experience did not meet the requirements of FA90; and he had not served in a logistics position for at least 24 months. It is acknowledged that the command required 24 months time served in FA90, a much stricter standard than that described in applicable regulation that requires 12 months.
b. There is no evidence that the disapproval of his request was a result of reprisal, meddling, or interference from BG Rxxx. Additionally, there is no law or regulation that prohibited BG Rxxx from providing his opinion or input regarding the personnel readiness of his subordinate commanders at the time. BG Rxxx was his commanding officer, charged with the health, welfare, training, and readiness of all his subordinates.
8. With respect to promotion to COL, there is no evidence that the applicant was eligible for, considered, or selected for promotion to COL by an RCSB prior to his transfer to the Retired Reserve. His date of rank as a LTC was 19 December 1994. As such, the earliest date he would have been eligible for consideration for promotion to COL would have been by the 1998 RCSB that convened on 14 July 1998 and adjourned on 14 August 1998. However, he had already voluntarily requested a transfer to the Retired Reserve the year before. Therefore, he did not meet the criteria for consideration for promotion to COL and as such was never considered. Having not been eligible for consideration for promotion to COL also disqualifies him from being considered by an SSB.
9. With respect to awarding him pay for service from the date of his voluntary retirement in December 1997 to the date of "reinstatement" in the active Reserve, generally speaking, an officer is entitled to pay only when he performs specified duties. Even if a convincing argument is hypothetically made that his voluntary retirement was wrongful, in the absence of the applicant actually having performed duties for which the Government is obligated to pay, there is no debt for which the Government is liable. Although the Secretary may pay a claim from applicable current appropriations for the loss of pay, allowances, compensation, or other benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under Title 10, U.S. Code, section 1552, the amount is found to be due the claimant, there is no statute or regulation that mandates pay for service never actually performed by a member of the ARNG. Lacking such a pay-mandating statute on which to base his claim, the applicant is neither entitled to back pay nor should he receive any.
10. With respect to credit for correction of his OMPF to reflect graduation from the Army War College, credit for Senior Service College completion, and award of retirement credit for attendance at the Army War College DDE, there is no evidence that he had completed SSC by the time he was transferred to the Retired Reserve. Additionally, it is noted that he recently completed the SSC in 2009 and was awarded a Master of Strategic Studies degree which is filed on his OMPF. However, he could not get service credit as he had not been in an active Reserve status since 1997. There is no provision to award monthly and annual drill pay and retirement points for a period of service during which he did not perform any service. If anything, the SSC benefited him in his civilian capacity in that it provided him a leg-up for potential employment in the DOD in the future.
11. With respect to his reinstatement in an active Reserve status, subsequent to his reassignment from battalion command to Camp Smith:
a. The applicant had a successful period of service as deputy commander. He was then given several choices in 1997 with respect to a transfer to another unit, transfer to the Retired Reserve, transfer to the IRR, or remain in an overstrength unit. He made a conscious decision and voluntarily requested a transfer to the Retired Reserve. He could have elected to transfer to another unit but did not do so. He could have remained in an overstrength position but again did not do so.
b. He now requests reinstatement into an active Reserve status but gives no logical reason why this should be approved. He was not promoted to COL, could not be considered by an SSB, and has shown no evidence that his transfer to the Retired Reserve was in error or unjust. There is simply no basis to reinstate him.
12. With respect to the issues he raised in conjunction with the submission of his rebuttal to the advisory opinion:
a. With respect to his contention that he was denied due process when the IG issued a revised ROI in the form of an addendum to the original ROI:
(1) The original DA IG ROI was completed and approved by the Vice Chief of Staff, Army on 19 March 1998. The DOD IG reviewed and concurred with the DA IG ROI on 17 September 1998. The DOD IG review was required because the applicant filed a reprisal complaint with the DOD IG.
(2) Based on new evidence submitted by BG Rxxx and NY TAG to the DOD IG, the preponderance of evidence established that BG Rxxx did not reprise against the applicant since the personnel action (LOR) against him was initiated prior to the applicant's protected communication with TAG on 3 October 1996. Therefore, the allegation that BG Rxxx reprised against the applicant by improperly issuing him an LOR was changed from substantiated to unsubstantiated.
(3) Prior to this Board receiving the amended ROI and subsequent NGB advisory opinion, the applicant had not mentioned or addressed the amended ROI. He built his entire case under the pretense that the IG substantiated the finding of reprisal. When the amended ROI was received, by his own admission, the applicant states that he knew of the existence of the 2000 addendum several months after it had been completed. It is unclear why he failed to mention in his initial application that the IG did not substantiate any of his issues.
(4) It is also unclear why he did not address the revised IG report or respond to the new findings during the "several months after it had been completed" if he felt he was denied due process as he now claims. After all, he argues that the IG's revised finding required the IG to afford him the opportunity to present matters incident to an administrative or disciplinary action.
(5) However, the explanation is simple: there was neither an administrative nor a disciplinary action taken against him. His relief was changed to a reassignment; his OERs were not coded as a relief for cause; he retired voluntarily; and the LOR was inadvertently placed in his file.
(6) Not only is his due process argument untimely by 10 years, the addendum to the ROI did not harm him in any fashion; thus, his argument becomes moot. It cannot be determined at what stage the LOR was placed in his file but it appears to have had no impact on his career or his decision to voluntarily retire.
(7) Nevertheless, if he believes his due process rights were violated and that he had and continues to have the right to address this issue with the DOD IG as he so claims, he should do so with the appropriate DOD IG office as reprisal issues are outside the purview of this Board. This Board may correct Army records but has no jurisdiction over DOD records.
b. With respect to the advisory opinion from outside agencies, by regulation, commanders of Army staff agencies and commands will furnish advisory opinions on matters within their areas of expertise upon request of the ABCMR and in a timely manner. They may obtain additional information or documentation as needed before providing the opinions to the ABCMR. They may provide records, investigations, information, and documentation upon request of the ABCMR. They also provide additional assistance upon request of the ABCMR and take corrective action directed by the ABCMR or the Secretary of the Army. Additionally, the ABCMR analyst did not prejudice the case or tell NGB if the Board was going to grant or deny his request.
c. NGB is bound to provide an advisory opinion; however, the ABCMR is not bound by a recommendation provided by staff agencies or commands. The Board can adopt the advisory opinion recommendation in whole, in part, or reject the recommendation, based on the Board's analysis of the facts and circumstances. The applicant's displeasure with the advisory opinion or his prior personal or professional disagreements with the NYARNG or NGB does not invalidate an advisory opinion provided by either command.
d. The Board requires an accurate advisory opinion, which at times, depending on the facts and circumstances may require a lengthy period of time. While it is true that the Board granted NGB multiple extensions regarding the submission of its advisory opinion, he was afforded the same opportunity for the submission of his rebuttal.
e. No inquiry is needed to look into the filing of the 1996 CL as there is no evidence that BG Rxxx, or any of his staff, personally placed this LOR in his MPRJ; nonetheless, the role of this Board is primarily to correct Soldier's records; not act as an investigative agency.
f. Contrary to his contention that the IG's supplementary ROI (Addendum) is not relevant to his case; it is the heart of his case. He based most of his argument under the contention that BG Rxxx reprised against him when this was untrue all along. The law does not prevent the IG from reopening an ROI based on new evidence submitted by a party affected by the results of an ROI. It is not up to the applicant to dictate when BG Rxxx could or should submit evidence to the IG to state his case. BG Rxxx had every right to appeal and he did so. The applicant on the other hand failed to do so.
g. The applicant was a NYARNG officer; his issues all involve his ARNG service. It is therefore reasonable for the Board to obtain information relevant to his case from both the NGB and State of NY. His issue related to barring the NGB or the NYARNG from providing input to his case is inappropriate. The Board must consider pertinent evidence; not just what he provided. In his case, his component was ARNG. It is totally appropriate to consult NGB for an advisory opinion.
h. The NYARNG and NGB file documents, including requests submitted by the Board for an advisory opinion, in accordance with their own governing policies and regulations. The ABCMR requested an advisory opinion from NGB and NGB in turn obtained input from the NYARNG. Therefore, it is appropriate for the NYARNG to retain copies of documents that facilitated their input into the advisory opinion.
i. The request for retirement credit for the maximum number of points for distant learning is inappropriate. His military service ended on 1 December 1997 when he voluntarily retired. He graduated from the Army War College on 24 July 2009. His attendance and graduation occurred while he was a civilian, outside his military service.
j. Regardless whether the NGB advisory opinion addressed all the issues he raised or failed to address any issues, again, this Board is not bound by any advisory opinion or a recommendation provided by staff agencies or commands. Additionally, the failure to address an issue does not automatically entitle him to relief. The fact remains that this Board has addressed all his issues. Therefore, his argument is without merit.
k. With respect to his concern regarding the "ex parte" process within NGB, his arguments are misleading. His argument appears to be more focused on demanding this Board investigate individuals and punish people. He not only fails to understand that the relief he seeks involves various echelons at the State, NGB, and DA levels, but also fails to fully understand the role of this Board.
(1) First, it is impossible to accurately address all his issues without involving the component that he worked for (NYARNG). Most cases considered by the Board rest on a single issue, are non-controversial, or are clearly answered by reference to a regulation or a statute. These cases do not require time for the Board to decide. Where a case involves complex issues, the Board takes the time to thoroughly review the record and the analyst's recommendation as well as input from outside agencies before making a decision.
(2) Second, the NGB opinion does not dictate the outcome of a particular case. Case analysts act much like law clerks for a judge in synthesizing the law and pertinent facts in a draft decision that the Board is free to reject. The Board, does, in many cases, concur with the analyst because the decision whether to grant relief, as noted above, involves a straightforward application of the facts in the record and applicable law and regulation. However, it is not unusual for the Board, after considering the entire record, to disagree with the analyst or the advisory opinion by rendering a decision contrary to the analyst's or the advisory opinion's recommendation.
(3) Most importantly, he has failed to provide any particular proof the ABCMR not the NYARNG or NGB - failed to give his case a fair and complete adjudication. The applicant failed to appreciate that while the ABCMR exists to help Soldiers, it is not a vehicle for dispensing unearned or unjustified benefits or record corrections.
13. With respect to his voluntary retirement, a decision to retire is presumed to be voluntary. To overcome this presumption, an applicant must show one side involuntarily accepted the terms of another; the Soldier was left with no other alternative; and the circumstances leading to retirement resulted from coercive acts by the NYARNG leadership. The applicant failed to make this showing:
* His decision to retire was voluntary and he failed to show he exhausted other alternative career choices. After all, the NYARNG provided him one year from his position to find a new LTC position he retired just over a month later and he offers no evidence he looked for another position in another ARNG unit or the USAR
* The applicant offers no proof the downgrading of his position was anything but a legitimate manning decision by the NYARNG
* The NYARNG properly denied his request for an FA 90A designation (which would have opened a LTC position for him). He lacked the required combat support experience and sufficient contracting experience and there is no evidence the NYARNGs requirement for 24 months time in service in an FA 90A billet (versus the regulatory 12 months) was applied differently in applicants case
* The Inspector General found applicants reprisal complaint unsubstantiated, thus undermining his claim of a coercive environment forced him to retire
* An uncomfortable work environment not the result of coercion or reprisal does not support a claim for constructive discharge.
14. The equitable defense of laches appropriately bars the applicant's latest claim. Laches properly applies when a party through neglect or delay fails to diligently pursue a claim. To rely on this defense, the Government must show the applicant delayed filing a claim of error for an unreasonable and inexcusable length of time from the time the applicant knew or reasonably should have known of this claim against the Army and the delay by the applicant operated to the prejudice or injury of the Army. He argues that his tenure as the PDASA at M&RA did realistically preclude ABCMR review from 2005 until 2009. However:
* Applicant failed to seek relief from his retirement in 1997 until 2005 even though he knew of the alleged errors (save for the CL) the entire time
* He admits he intended to file an application in 1999, but elected not to because his civilian law practice "heated up"
* Excusing a considered decision to delay filing creates a situation where the applicant receives an extraordinary windfall (points, pay etc.) for a lack of diligence, one of the reasons why the equitable doctrine exists
15. The primary basis for his contention is that he was wrongfully reprised against by certain individuals within the NYARNG. The DA IG found all his allegations unsubstantiated. Aside from removing the LOR that was inadvertently placed in his MPRJ, relief is not in order.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
___X____ ____X___ ___X ___ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
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 removing the LOR, dated 26 February 1996, from his MPRJ and ensuring it is not filed in any of his records.
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 insertion into his personnel records a DA Form 67-8 covering the period 16 May 1993 through 31 August 1993; removing from his record the DA Forms 67-8 covering the rated periods from 1 October 1995 through 31 March 1996 and from 1 April 1996 through 1 September 1996; correction of his OMPF to reflect graduation from the Army War College, credit for Senior Service College completion, and award of retirement credit for attendance at the Army War College DDE; promotion to colonel or consideration by an SSB; award of appropriate monthly and annual drill pay and retirement points from the time of his departure from the NYARNG in December 1997 until his reinstatement as an active reservist; or removal from the Retired Reserve with concurrent reinstatement in the active Reserve.
__________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.
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