IN THE CASE OF:	

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20090019504 


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 he be promoted to colonel, effective 9 March 2000, and retired in that rank.

2.  The applicant states he was selected for promotion but not promoted for two reasons.  First, he was told there were no controlled grade positions available.  However, he later found out that the Texas Army National Guard (TXARNG) could have and did request authorization for additional positions for other officers.  The other reason was that, as an Inspector General (IG), some of the investigations he completed reflected negatively on senior officers in the TXARNG resulting in a bias against him.  There was a "good old boy" network and because of the IG bias he was not allowed to progress in rank when other less qualified officers were selected by an "Order of Merit Board."  To avoid possible retaliation against those who might support him, he held off applying to correct this error until there was a change in the command personnel.

3.  The applicant provides copies of his 1995 - 2000 Officer Evaluation Reports (OER's), several certificates of training, eight letters of appreciation or commendation, and copies of his transfer orders.

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant served in the TXARNG in an enlisted status from 4 February 1967 through 14 May 1976.  On 15 May 1976, he was commissioned a second lieutenant in the TXARNG Quartermaster Corps.  He transferred to the Medical Service Corps on 15 November 1977 and he served in a drilling status, with a period of 1 year, 3 months, and 27 day of active duty.  On 1 August 1981, he entered the Active Guard Reserve (AGR) program and transferred back to the Quartermaster Corps.
 
3.  He was assigned to IG positions from 8 September 1988 through 15 September 1992, with completion of the IG Course on 9 December 1988 and award additional skill identifier 5N (IG) on 30 November 1989.

4.  The applicant was promoted to lieutenant colonel, effective 1 March 1995.

5.  On 5 June 1997 the applicant was notified that he had been selected for retention by the 1997 Officer Selective Retention Board.  

6.  His OER's show that during his last five years in the AGR he served as an assistant chief of staff, a battalion commander, and a retention and recruiting commander.  He received excellent evaluations and recommendations for promotion and assignment to higher positions of authority on all of his ratings during this period.

7.  On 9 March 2000, the applicant was notified that he had been selected for promotion to colonel with a promotion eligibility date of 29 February 2000.  The notification states that if the officer accepts promotion and Federal recognition is not extended in the next higher grade, they will be transferred in their current grade to the Army Reserve.

8.  The State of Texas Adjutant General's Department, Orders 088-179, dated 28 March 2000, notified the applicant that he was to be released from active duty (REFRAD) and placed on the Retired List, effective 31 May 2000.  The orders show that this was a voluntary retirement with 20 years, 1 month, and 27 days of active duty.
9.  On 31 May 2000, he was REFRAD under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 6-14C(1) and transferred to the Retired Reserve effective the following day.

10.  During the processing of this case, on 14 May 2010, an advisory opinion was obtained from the National Guard Bureau, Chief, Personnel Division.  The advisory official opined that the applicant failed to provide sufficient documentation to support his contentions.  He failed to provide evidence that an "Order of Merit Board" existed, that there were potential positions available, or that less qualified officers were promoted over him.  It was opined that the applicant was selected for promotion and three months later he voluntarily retired and had not applied for relief for over 10 years.  There was insufficient evidence to support a favorable recommendation.

11.  A copy of the opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 1 June 2010, he responded in that the advisory opinion failed to address the facts related to his request and contained factual errors and omissions.  His retirement was not voluntary but mandatory, that the TXARNG could have requested an additional controlled grade position, and that he had provided a specific example of the bias against him.  He states that had he applied earlier, anyone who supported him would have faced retaliatory actions and he would not put others in that position.

12.  National Guard Regulation 600-5 (The AGR Program, Title 32, Full-Time National Guard Duty (FTNGD)), states at:

	a.  paragraph 5-4, for retention beyond mandatory release date from Active Federal Service (AFS), the most important fact to consider in the decision is that the Soldier is not only the best available, but the only one available and extensions beyond 20 years of AFS for officers are normally short term until the incumbent can be replaced by another AGR Soldier with the required expertise; 

	b.  paragraph 6-1, an AGR commissioned officer must serve for three years in grade to retire in a rank above major and below lieutenant general; and

	c.  paragraph 6-4, AGR Soldiers will be separated without board action when an officer reaches either their mandatory retirement date or have completed 20 years of active Federal commissioned service.

13.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was selected for promotion but not promoted for two reasons.  First, he was told there were no controlled grade positions available.  However, he later found out that the TXARNG could have and did request authorization for additional positions for other officers.  The other reason was that, as an IG, some of the investigations he completed reflected negatively on senior officers in the TXARNG resulting in a bias against him.  There was a "good old boy" network and because of the IG bias he was not allowed to progress in rank when other less qualified officers were selected by an "Order of Merit Board."  To avoid possible retaliation against those who might support him, he held off applying to correct this error until there was a change in the command personnel.

2.  The applicant received mandatory separation orders based on completion of 20 years of active Federal commissioned service at approximately the same time as the promotion board results were released.

3.  In order to accept a promotion to colonel and retire in that rank, the applicant would have to be able to serve three years as a colonel.  Because of his mandatory separation, the applicant was no longer in a promotable status in the AGR.  However, had he desired to accept the promotion, he could have elected to transfer to the IRR in lieu of requesting retirement.

4.  Further, the TXARNG was not obligated to create a position, request an expansion of manning authorization, or to request an exception to policy to allow the applicant to continue in the AGR beyond his mandatory release date.  The regulation that authorizes extensions beyond the 20-year point state that the Soldier must not only be the best available, but the only one available.  Retention to allow an officer to be promoted does not meet the criteria for an extension.

5.  The applicant has not provided and the record contains insufficient evidence to support his contentions.  The applicant has not provided any verifiable documentation to show that another officer received preferential treatment or that his position as an IG influenced the TXARNG's actions in relation to his promotion to colonel. 

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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.



      ____________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090019504



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ABCMR Record of Proceedings (cont)                                         AR20090019504



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