IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20100026624 


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 makes his request through his counsel.

2.  The applicant states he has read his counsel's legal brief and believes it to be truthful and accurate.

3.  The applicant provides all documentation through his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, on behalf of the applicant, correction of his military records to show:

	a.  the applicant's release from Active/Guard/Reserve (AGR) status and transfer to the Retired Reserve on 30 April 2001 was set aside;

	b. that the applicant's AGR status was reinstated with promotion to colonel, pay grade O-6; 

	c.  that the applicant's records show he qualified for retirement in pay grade O-6; and

	d.  that he receive back pay as a result of these corrections.


2.  Counsel submits an 18 page statement wherein he makes the arguments summarized below:

	a.  It is in the interest of justice to consider this case because:

* It involves long-term institutional discrimination
* It requires promotion and assignment data and statistics for proof
* The National Guard Bureau (NGB) was often unresponsive to Freedom of Information Act (FOIA) requests and misdirected and/or delayed replies for many months
* Key witness testimony was delayed
* Counsel was delayed due to his own disability
* The State Senator has concerns about discrimination within the Army National Guard (ARNG)

	b.  Evidence/argument in support of error and/or injustice in this case:

* Between 1991 and 2001 the applicant's Officer Evaluation Reports (OER's) always showed maximum ratings
* Applicant was Inspector General (IG) qualified - had completed the IG Course
* In 1998 the applicant was an AGR officer on active duty, Federally recognized with the Kansas ARNG
* In 1998 the applicant was selected for promotion to colonel by a Federal Board.  The list was approved and released on 14 January 1999
* Promotion required a colonel vacancy

	c.  The applicant was nominated for colonel position vacancy:

* In August 1999, the Army IG submitted a request to the Chief, NGB, to nominate the applicant for an IG colonel position vacancy opening in November 1999 and he was not selected
* The selected candidate (Caucasian) was soon disqualified due to physical fitness and weight issues
* A replacement candidate (Caucasian) was assigned and promoted
* The selected candidates had completed the IG course but the NGB did not answer a FOIA inquiry as to the previous candidates IG experience




	d.  Two other AGR vacancies that the applicant previously inquired about were filled without announcement and/or nomination boards:

* In 1999 the applicant was told that a vacant position was not being filled; however, it was moved to Fort Gordon, Georgia, and filled directly without nomination or competition by an officer already at that location
* In 2000 the applicant learned that a second colonel vacancy had been filled without nomination or competition, the location is not mentioned

	e.  In 2000 the applicant diligently pursued other colonel assignment opportunities informally, but without success.  These included jobs at Fort Lewis, Washington and as Senior ARNG Advisor.

	f.  The applicant's filed several formal Equal Opportunity (EO) and or IG complaints between 2001 and 2002:

* Alleging discriminatory practices in the ARNG that adversely affected promotion of African-Americans
* His complaints included the vacancy positions mentioned above and 
he requested an inquiry through his Congressman
* All complaints were forwarded to and were consolidated by the Department of the Army IG (DAIG)
* On 30 April 2001, the applicant was released from active duty and transferred to the Retired Reserve

	g.  In June 2001, the DAIG responded to the Congressman's inquiry:

* The response was vague, stating simply that the NGB had an established process and the applicant was not considered the best choice for the IG position at the NGB
* The DAIG response failed to address the other two positions mentioned above
* The DAIG response did not address the applicant's contention that the two colonel vacancies were improperly filled through favoritism as evidenced by not using the established announcement and board process
* The DAIG response indicates the broader allegation of institutional discriminatory practices was misunderstood by the DAIG
* The response conflated the allegation by arguing that without specific showing of "personal" discrimination, an investigation was not warranted
* The applicant specifically questioned whether there were any minority members on the selection board, the gross disparity in the promotion of African-Americans to the rank of colonel, and of the absence of minorities in senior or NGB management positions

	h.  In June 2002, the NGB implemented a Diversity Program:

* An African-American brigadier general was appointed into a newly created position as the ARNG's Special Assistant to the Director of Human Resources
* This was to remedy systemic EO problems and other human resources/relations problems
* This program coincided with the NGB's "Year of Diversity"

	i.  EO policy - What regulations apply?

* National Guard Regulation (NGR) 600-21(EO Program in the ARNG) states it does not apply to ARNG personnel when performing active duty under Title 10, U.S. Code, for more than 30 days
* Army Regulation 600-20 governs ARNG Soldiers when performing active duty under Title 10, U.S. Code for more than 30 days
* NGR 600-10 (ARNG Tour Program) controls EO policy with respect to the assignment nomination process for AGR positions

	j.  Counsel argues that common sense dictates the NGR 600-21 would apply to the nomination process managed by the National Guard.  However, this regulation is not clear as to what regulation is controlling.  In any event, ARNG and Federal EO policies are generally the same.

	k.  Affirmative Action Plans - Eliminating institutional barriers to EO:

* Federal regulations require that various steps must be taken to remedy unlawful "institutional discrimination" or "institutional barriers" against minorities so they may achieve the highest levels of responsibility possible
* In the ARNG, due to limited senior duty, the highest level of responsibility is commonly the rank of colonel
* As opposed to intentional or personal discrimination, institutional barriers are proved with statistics under "disparate impact theory
* EO policy is not limited to merely avoiding racial discrimination; but also ensures equal treatment


	l.  EO reporting on minorities

* Assesses quantitative data by each race and ethnic class for promotions and assignments
* Affirmative Action Plans will be reviewed annually to identify and resolve EO problems

	m.  Minority Board Membership

* U.S. Army Reserve promotion boards are to include one minority/female voting member
* The National Guard regulation governing application for ARNG assignment into Title 32 AGR status states that boards considering minorities will have such membership
* NGR 600-21 has similar safeguards for all boards, as would cover promotion and assignment nominations
* NGR 600-10 does not mention the minority membership rule in its selection or board composition procedures - only that nominations are made "without regard to race, religion, color…"

	n.  Imbalances in Minority Promotion/assignment Rates

* Federal promotion board procedures are monitored and records are maintained
* Significant variances in minority selection rates are brought to the board's attention and reviewed prior to adjournment
* Variances from the goals must be explained in the board's after-action report
* EO requires a 60-day advance announcement to allow competitive participation for AGR vacancies
* Until 2002, the AGR nomination board process failed to include minority representation
* There was a historically significant variance in ARNG promotion rates of African-Americans to colonel
* There were no affirmative action corrections
* The ARNG Special Assistant to the Director on Human Resources  (ASDHR) (EO/Diversity) provided this information to the applicant's counsel
* The ARNG ASDHR was appointed to remedy systemic EO problems which included development of a diversity program
* The ARNG ASDHR was to enforce the requirements for all State and NGB-level promotion and assignment boards to follow the rule for minority or female membership
* In 2002 there were not enough lieutenant colonel or colonel officers; therefore the ARNG ASDHR often sat on NGB boards or traveled to States to sit as the minority or female member
* Other actions included ARNG-wide diversity training to senior noncommissioned officers and commissioned officers to emphasize equal treatment policies
* The ARNG ASDHR credits the minority membership rule with increasing the number of colonel promotions for African-Americans

	o.  FOIA requests to NGB-ARNG 2002-2005:

* Counsel submitted numerous FOIA requests to determine whether systemic discrimination or institutional barriers existed, including denial of EO for African-American promotions to colonel
* There were four nomination boards during 1996-2000 comprised of a total of 28 officers, 4 of whom were alleged to have been "minority groups" but were not African-American
* FOIA reply was vague by not stating the minority membership of each board
* The ASDHR stated that if a board contained a minority member it was only by chance
* The FOIA reply stated that no African-American sat on any nomination board because none had volunteered to do so, indicating that minority representation was not directed or mandatory
* During the period 1996-2000, only one African-American was promoted to colonel out of 140 selected officers, less than 1 percent 
* The average DA selection rate during 1996-2000 for African-American colonels was 28 percent, equating to about 39 "Blacks" that should have been promoted
* A 15 percent variance (about 6 officers, more or less) means no less than 33 "Blacks" should have been promoted
* The near zero promotion rate is grossly disproportionate from the overall AGR population promotion rate
* FOIA reply stated that by 2005, there were 15 African-American colonels filling AGR colonel positions indicating a dramatic increase in the promotion of black officers to colonel
* Statistical analysis shows the failure to apply the minority membership rule for AGR selection boards was the primary reason for past low promotion rates - an institutional barrier against African-American officers resulting in institutional discrimination within the ARNG
* Failure to comprise nomination boards with a minority member violated Army regulations

	p.  Analogous court precedent:

* Promotion pass-over of officers was set aside after the boards failed to contain at least one Reserve member
* Violations were not subject to harmless error "second guessing" by the Army
* The officers were reinstated to active duty
* Courts have found it an important fact to prove past due process violations in military discharge boards where the military later made remedial procedural fixes
* ARNG promotion variances against black officers were worsened in the applicant's situation because vacancies were filled behind closed doors and non-competitively; thereby passing the announcement and nomination board
* The Army Board for Correction of Military Records (BCMR) may in extraordinary cases of racial discrimination under NGR 600-21, order that a Guard member be reinstated in a comparable active Federal Reserve status and be awarded retroactive promotion and back pay

3.  Counsel provides:

* Letter, Oklahoma State Senate, dated 23 October 2010
* Tab A:  DD From 214 (Certificate of Release or Discharge from Active Duty) ending 30 April 2001, and eleven DA Forms 67 (Officer Evaluation Reports) rendered between 1 March 1991 through 15 April 2000
* Tab B:  six letters from various Army/Air Force IG offices, dated from 
* 30 October 2000 to 4 June 2001, and a Congressional letter, dated 
28 June 2001
* Tab C:  Applicant's letter to the Secretary of the Army, dated 19 January 2001, and letter through the chain of command to the EO Office, Washington DC, dated 20 February 2001
* Tab D:  Colonel, USAR/APL Promotion Board Results for FY98; Memorandum requesting "by name" fill for IG position, dated 31 August 1999, and Talking Paper, undated and unsigned
* Tab E:  Email communications between the applicant and various persons between 11 February 1999 and 3 October 2000
* Tab F:  FOIA requests from counsel, dated in 2002 and 2004 with replies
* Tab G:  NGR 600-10 (ARNG Tour Program), dated 24 February 1983, and NGR 600-21 (EO Program in the ARNG), dated 5 April 1993
* Tab H:  Letter and slides for 2002 NGB EO/EEO National Training Conference, dated 15 May 2002
* Tab I:  Department of Defense (DOD) Directive Number 1350.2 (DOD Military Equal Opportunity Program), dated 18 August 1995
* Tab J:  DA Pam 600-26 (DA Affirmative Action Plan), dated 23 May 1990, containing only pages 1,5,6,and 10
* Tab K:  Army Regulation 600-21 (DA EO Program), dated 1 January 1984
* Tab L:  Number 95-816, In the Supreme Court of the U.S., October 1995, Mier v Dyke, extract consisting of 3 pages
* Tab M:  Counsel's personal medical documents/claim, dated between July 2008 and 21 January 2010

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.  On 1 December 1988, the applicant was promoted to major, pay grade O-4. His subsequent assignments included:

	a.  Assistant IG, Kansas ARNG, 1991-1993;

	b.  Operations Officer, Kansas ARNG, 1993-1994

3.  The applicant was promoted to lieutenant colonel on 22 April 1994.  His subsequent assignments included:

	a. Chief, Operational Readiness Evaluation Team, Kansas ARNG, 1994-1996;

	b.  Chief, Reserve Component Support Division, Kansas ARNG, 1996-1999; and

	c.  Deputy Branch Chief, Operations, Headquarters, Forces Command, Fort McPherson, Georgia, 1999-2000.

4.  The applicant was selected for promotion to colonel, pay grade O-6, by the Fiscal Year 1998, USAR, Promotion Board.

5.  In a memorandum, dated 31 August 1999, The DAIG, Washington DC informed the Chief, NGB, that there was a pending vacancy in the Investigations Division for an AGR officer.  He requested that the applicant be nominated to fill the position with an authorized report date between November 1999 and January 2000.

6.  In a memorandum dated 20 September 2000, the Chief, NGB informed The Adjutants General of all states, territories of the U.S., and the Commanding General of the District of Columbia about the National Guard's commitment to ensuring EO/equal employment opportunity for all National Guard members and employees and applicants regardless of race, color, national origin, sex, religion, age, or disability.  The chief stated that it was the policy of the NGB to implement a strong affirmative employment/affirmative action program and to provide equal opportunity for all in the areas of recruitment, hiring, promotions, transfers, reassignments, training benefits, separations and in all policies affecting the treatment of employees and members.

7.  In letters dated 5 and 19 March 2001, the Chief, Assistance and Investigations, Office of the IG, NGB, informed the applicant:

	a.  that after an extensive preliminary analysis, the NGB IG determined the best method of handling his case was by forwarding his complaint to the Secretary of the Air Force, Office of the IG; and

	b.  that the Air Force IG completed an inquiry and found no impropriety by the senior official identified in the applicant's allegation.

8.  On 30 April 2001, the applicant retired in the rank of lieutenant colonel, pay grade O-5, ARNG, due to sufficient length of service.  He had completed 
20 years, 1 month and 28 days of creditable active service.

9.  In a memorandum dated 23 January 2002, the Chief, NGB informed The Adjutants General of all states, territories of the U.S., and the Commanding General of the District of Columbia about the relationship between diversity and EO.  The chief stated, "In the past, some people in our organization were denied a fair and equal chance to advance in their careers because of individual differences such as race, ethnicity, religion or gender.  As a result, programs were put in place to stop illegal discrimination based on these factors.  Affirmative Action Plans further helped to correct past discrimination and began a deliberate process of affording equality to all."  This letter makes no mention of who or how many individuals were denied fair treatment, or what, if anything, was done to right any of the wrongs.

10.  In a memorandum, dated 4 February 2002, the Director, Army National Guard, informed The Adjutants General of all states, territories of the U.S., and the Commanding General of the District of Columbia about the Diversity Initiatives and training guidance.  The director stated the ARNG did not have a well-balanced racial or ethnic mix nor did it have a fair representation of women. The diversity initiatives were meant to achieve such a balance.

11.  In the processing of this case, an advisory opinion was obtained from the Acting Chief, Personnel Policy Division, NGB, Arlington, Virginia.  The opinion recommended disapproval based on insufficient evidence to suggest that relief is warranted.  The opinion offered the following discussion points:

	a.  NGR 600-100, paragraph 8-1, provides that promotion of officers in the ARNG is a function of the State.  Paragraph 8-2(b) states that promotion will be accomplished only when an appropriate position vacancy in the grade exist in the unit.  The available evidence does not indicate that a colonel, pay grade O-6 position was available at the time in question.  Even though a position later became available and the applicant was requested by name, it is the States' prerogative to fill the position.  The U.S. constitution reserves the appointment of officers in the State militias to the States.

	b.  The Title 10, AGR program is essentially a long-term second amendment program where the States and Territories release officers to Federal control for the purpose of serving at the NGB and elsewhere as directed.  While officers in the program are managed at the Federal level, their promotions are accomplished in coordination with their home State/Territory in compliance with constitutional and regulatory requirements.  In the Title 10 AGR program the number of AGR colonel, pay grade O-6 authorizations is limited, resulting in more officers attaining promotion eligibility than there are authorized positions.

	c.  Guidance provided by the Judge Advocate office indicates that promotions in the Title 10 AGR program are the end result of an assignment process.  The Chief, NGB and the ARNG Senior Leadership have the full and total discretion to assign personnel and assign AGR authorizations based on the mission requirements and needs of the organization.  Such assignments may be in an officer's current grade or in a higher graded position.  Allocation of an AGR controlled grade is the promotion of officers by their states.  Federal recognition of such promotions is accomplished either by the mandatory promotion process or in the case of Title 32 officers, by a Federal Recognition process, if qualified.  In this case the applicant was never assigned to a colonel position.  There is no evidence showing his non-assignment was the result of discrimination.

	d.  The applicant filed an IG complaint on 27 October 2000, wherein he alleged he was the victim of institutional discrimination.  The inquiry into this allegation indicated no impropriety by senior officials.

	e.  On 21 February 2001, the applicant filed an EO complaint.  The EO Office of the NGB reviewed the allegations and found them to be general in nature and did not include a specific complaint of personal discrimination.  Therefore, it determined there was insufficient information to warrant an investigation.  The applicant was advised he could file a formal complaint of personal discrimination if he could be more specific about the complaint.

12.  On 15 July 2011, the applicant's counsel replied to the advisory opinion.

	a.  Counsel appears to agree that promotion of ARNG officers is reserved to the States; but also argues that the BCMR has the authority to review NGB actions and promote an ARNGUS officer in a comparable Federal AGR capacity.  Counsel refers to ABCMR Docket Number AR2007-13672 (2008) wherein the officer was selected by a DA level Reserve Component Selection Board for AGR Title 10 for ARNG promotion but then selection was delayed.  During delay, successive NGB career field review boards (CFRB) did not select the officer for assignment.  The ABCMR found the officer was not entitled to the promotion because he did not show the CFRB process [over 4 years] was unfair and caused him not to be promoted.  Other ABCMR cases have shown that Secretarial or "direct promotion" without special reconsideration boards is appropriate for fundamental process errors.

* Air Force BCMR Number 94-0303 directly promoted an individual to major where the individual was not considered for advancement on a fair and equitable basis
* Air Force BCMR Number 98-00076 directly promoted individuals to lieutenant colonel where a special selection board (SSB) process was unfair; reversed by Secretary after finding the SSB process was full and fair
* Porter v U.S. 263 F.3d 1304 (Fed cir 1998):  BCMR may refer a case to SSB while retaining discretion not to refer in certain [other] cases
* The ABCMR itself may void discharges and reinstate when errors are either egregious or involve impermissible consideration 

	b.  Counsel notes the NGB advisory appears to acknowledge that serious errors or unfairness in the assignment or promotion processes may be grounds for relief.  However:

* The advisory opinion simply parrots the IG 2001 response to the applicant's complaint without having done any independent analysis
* The advisory opinion regurgitates the EO reply in 2001 that declined to investigate because allegations were general and did not specify personal discrimination
* The advisory opinion retreats to the same old tactics used since 2000, by deliberate avoidance of legal issues, obstruction of the facts, and glib arrogance
* The evidence proves that the IG and EO in 2001 never investigated the applicant's claims of institutional discrimination
* Neither the IG nor the EO ever offered evidence to dispute the statistics showing past rampant systemic barriers against Black officers to achieve higher ranks
* This is methodology used by courts under the "disparate impact" doctrine
* The advisory opinion is mistaken that the IG in 2001 fully and fairly did an investigation and found unsupported "institutional discrimination"
* The NGB cleverly narrowed the IG complaint by forwarding it to the DAIG to limit the inquiry to whether there were "personal improprieties"
* The applicant's complaint alleged "pervasive favoritism in practices throughout the ARNG in that promotable slots were fenced for individuals to bypass the board process
* The only affirmative evidence that improper practices occurred is the inference from NGB remedial action in 2002 to stop the fencing of positions
* Diversity training warned against past practices of fencing off assignments in advance
* The advisory opinion avoids the legal issue of the minority membership on boards
* The NGB deliberately failed to confront this issue despite the applicant specifically raising it in 2000
* The NGB's reply to the applicant encouraging him to file a more specific EO complaint is considered to be a tactic used to dodge the question
* Counsel contends the burden of proof shifted to NGB when the applicant raised an EO claim of failure of a minority board member
* Failure to rebut the allegation is a violation of fundamental fairness and minimal due process that voids the board's results
* Counsel argues that the evidentiary burden shifted to NGB to prove that not only the applicant's board, but the boards for all colonels prior to 2002 were complying with the minority board membership rule
* Sanders v. U.S. 594 F.2d 804 (Ct.Cl. 1970):  That court rejected the Army's litigation argument that it was the officer's burden to show a conclusive casual connection that "but for" the error or injustice he would or probably would have been selected for promotion

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends that because of institutional discrimination and systemic barriers against Black officers to achieve higher ranks, the applicant's records should be corrected to show:

	a.  that his release from AGR and transfer to the Retired Reserve on 30 April 2001 was set aside;

	b. that his AGR status was reinstated with promotion to colonel, pay grade 
O-6; and

	c.  that he qualified for retirement in pay grade O-6 and receive back pay as a result of these corrections.

2.  The evidence clearly shows the applicant had been selected for promotion to colonel, pay grade O-6; however, he was never assigned to a unit vacancy in the pay grade of O-6.

3.  Evidence clearly shows that he had served as an assistant IG between 1991 and 1993 as a major, pay grade O-4.  It further shows he was requested by name to fill an IG vacancy available in late 1999 for colonel, pay grade O-6.  He was subsequently not selected for this position.  However, there is no direct documentary evidence showing that he was the most qualified candidate for this position, or that he was unfairly denied this opportunity for any reason.

4.  The applicant's subsequent IG and EO complaints regarding his allegations of discrimination were reportedly investigated, resulting in no findings of impropriety by senior officials.

5.  Regarding the applicant's allegations that positions were filled without using the nomination process, he has not provided any direct evidence showing that individuals were improperly/illegally assigned to such positions.


6.  The memorandums written in 2000 and 2002 by the Chief, NGB clearly indicate that in the past, some people in the National Guard were denied a fair and equal chance to advance in their careers because of individual differences such as race, ethnicity, religion or gender.  However, there is no direct evidence showing the applicant's failure to be assigned to an O-6 position was a result of any unfair treatment.

7.  The statistical data acquired by the applicant clearly indicates that there was an imbalance in minority promotions within the ARNG supporting the need to initiate stronger diversity programs.  However, the evidence falls short of proving that the applicant was unfairly denied assignment to a particular position that would have resulted in his promotion to colonel, pay grade O-6.

8.  In view of the above, the applicant's request should be denied.

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)                                         AR20100026624



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ABCMR Record of Proceedings (cont)                                         AR20100026624



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