IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110008345 


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 Federal recognition for promotion from colonel (COL) to brigadier general (BG).

2.  The applicant states:

	a.  he served in the Mississippi Army National Guard (MSARNG) for 36 years, of which 6 years were in an enlisted status.  He completed all the civilian and military education requirements and he was a line officer in the Field Artillery (FA) for 27 years.  In 2001, he was transferred to another line unit, the 184th TCE (Transportation Command Element) as a deputy commander, a COL/O-6 billet.  He was already a COL/O-6 upon transfer after having commanded the 631st FA Brigade. 

	b.  the command slot of the 184th was a BG/O-7 slot and he was told he would follow the present commander when he retired.  After serving as deputy commander for a year or so, he began asking about his BG nomination packet and found out that his packet had been placed at the bottom of the promotion list. His commander questioned why the packet was not moving forward but did not receive a response.  A month after the deadline, The Adjutant General (TAG) sent his packet forward.  By this time he required an age waiver.  He was able to get the waiver and his packet went before Congress.  He was approved for promotion to O-7.  At that time, he was the number one officer on the list for promotion and he was also the only U.S. Army War College (USAWC) graduate who qualified in the Transportation Corps (TC) to take command of the 184th TCE.  
	c.  a new governor and TAG moved into place in the State.  As his commander was getting ready to retire, he inquired with TAG about the promotion but he was told TAG had changed the paperwork from a line to non-line officer.  The only non-line officers in the State were TAG and the Assistant Adjutant General (AAG).  The officer who got the command at the time was the full-time AAG who had already held two different O-7 commands in the State.  He had already been an O-7 for some 3 years and he had never served in a transportation unit.  There is no other explanation for the injustice other than State politics.  He feels he was denied O-7 and possibly O-8 down the road. 

3.  The applicant provides:

* Orders 055-187 (Transfer to the 184th TCE)
* Memorandum of Nomination for a Certificate of Eligibility for [Applicant] to BG in the 184th TCE
* Memorandum of Nomination for a Certificate of Eligibility for [Applicant] to BG in Headquarters, MSARNG, as AAG
* Orders 232-164 (Transfer to the Retired Reserve)
* DA Photograph
* DA Form 705 (Army Physical Fitness Test Scorecard)
* DA Form 67-9 (Officer Evaluation Report (OER)) for the periods 20030131 through 20030401 and 20020131 through 20030130

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 was born on 4 February 1947.  

3.  He enlisted in the MSARNG on 21 September 1968 and held military occupational specialty 63C (General Vehicle Repairman).  He attended and completed the Infantry Officer Candidate Course from 16 June to 15 August 1974 and he was honorably discharged from the ARNG on 16 August 1974 to accept a commission.

4.  He was appointed as an FA Reserve commissioned officer in the MSARNG and executed an oath of office on 16 August 1974.  He served in a variety of staff and leadership positions.

5.  On 7 February 1989, the MSARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

6.  He was promoted to lieutenant colonel as an FA officer 1 February 1993 and to COL on 10 April 1998.  He attended and successfully completed the USAWC on 21 July 2000.

7.  He served as the brigade commander, 631st FA Brigade, Grenada, MS, from 1 June 1998 to 30 January 2001.

8.  On 29 March 2001, MSARNG published Orders 055-187 ordering his release from his assignment as the brigade commander and transferring him to the position of deputy commander, Headquarters and Headquarters Company, 184th Transportation Brigade, Laurel, MS, effective 15 April 2001.

9.  His OERs for the periods 31 January 2002 through 30 January 2003 and 31 January 2003 through 1 April 2003 show his principal duty title as Deputy Commander, 184th Transportation Brigade. 

10.  On 31 January 2003, two memoranda were issued by TAG, recommending him to BG in accordance with National Guard Regulation (NGR) 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 11-8a(1):

	a.  memorandum recommending him for a Certificate of Eligibility in the ARNG to the grade of BG and the position of Commander, 184th Transportation Brigade, vice BG Hxxxxxxx (incumbent) who was retiring on 24 September 2004.

	b.  memorandum recommending him for a Certificate of Eligibility in the ARNG to the grade of BG and the position of AAG, Headquarters, MSARNG, to occupy a vacant position.

11.  The staffing and disposition of each memorandum are not available for review.  Nothing in his records reveals what occurred after this date.

12.  On 19 August 2004, MSARNG published Orders 232-164 honorably releasing him from his position as the Deputy Commander, 184th Transportation Brigade, and transferring him to the Retired Reserve, effective 31 August 2004, in accordance with paragraph 5a(2) of NGR 600-100.

13.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he completed 30 years and 15 days during this period and 35 years, 11 months, and 10 days of total service for pay.

14.  On 27 December 2006, the U.S. Army Human Resources Command published Orders P12-693022 placing him on the retired list in his retired grade of COL effective 4 February 2007, his 60th birthday.

15.  Officers nominated to meet a General Officer Federal Recognition Board (GOFRB) may be nominated for one of two qualifications:

* General Officer of the Line (GOL) - officers carrying a GOL qualification may serve in a variety of billets/positions, such as commander, chief of staff, and staff/command positions
* Adjutant General Corps (AGC) - officers carrying an AGC qualification may only serve as TAG or AAG of a State National Guard

16.  He submitted a letter of support from Major General (now retired) LHH who states: 

	a.  He was the former commander of the 184th Transportation Brigade, an   O-7 command that is presently serving in Afghanistan.  He requested the applicant be transferred to his command to serve as a deputy commander.  He personally chose him due to his abilities, skills, and War College education, as well as being the best person available to assume command upon his (the author's) retirement.

	b.  TAG refused his countless requests to put forward the packet until an age waiver was needed.  After the age waiver was obtained, TAG put the applicant's records forward for him to be a GO not of the line.  He (the author) was never told of this until TAG had left office and a new TAG had taken over.  Since the 184th required a General Officer of the Line (GOL), the applicant was not allowed to assume command and he was forced to retire.  It became clear later that an officer close to TAG was selected as the replacement.  

17.  An advisory opinion was prepared by the National Guard Bureau - General Officer Management Office (NGB-GOMO) on 21 March 2012 wherein an official recommended denial of the applicant's request for promotion in the retired grade of BG/O-7 and stated:

	a.  [Applicant] was nominated by TAG – MSARNG to meet the June 2003 ARNG FRB for a Certificate of Eligibility (COE) to serve as a BG with GOL qualification. Under requirements in place at the time, officers meeting the board for a GOL qualification to serve in the grade of BG must not have attained the age of 56 prior to the board convening.  [Applicant] was born on 4 February 1947 and turned 56 in February 2003.  The NGB GOMO informed TAG-MSARNG that the applicant was not eligible to meet the board for GOL but could meet the board for AGC qualification as the age restriction for AGC was age 58.

	b.  The NGB GOMO also advised TAG that he could request the Secretary of the Army waive the age restriction to allow the applicant to meet the board for GOL.  Subsequent to this conversation, NGB-GOMO contacted TAG advising him that with the date of the board getting closer and there being little chance of the waiver being approved due to the Secretary of the Army's verbal opposition to age waivers, it would be better to nominate the applicant for AGC only and nominate another officer that TAG had identified as a candidate for the GOL position.  TAG then nominated the applicant for an AGC COE against the position of AAG.  The applicant subsequently met the board for AGC and was Senate confirmed for COE on 11 March 2004.

	c.  The applicant did not receive an age waiver to meet the FRB for GOL.  He met the board for AGC only.  NGB-GOMO's records do not indicate he was placed in a GO billet prior to or after Senate confirmation.  If he had been placed in the AAG position from the date of Senate confirmation until his retirement in August 2004, he would have been immediately Federally recognized and his mandatory removal date recalculated. 

18.  The applicant provided a response on 12 June 2012 wherein he stated that he finally received answers to some of the questions concerning why he did not get promoted.  He was not informed that his paperwork had been changed from GOL to AGC and he now understands it had to do with his age, although he was assured the paperwork would be sent prior to the age limit.  In summary, he was promised command of the 184th TCE and promotion to BG.  The administration appears to not have been truthful to him.

19.  An advisory opinion was also obtained on 4 April 2012 in the processing of this case.  This advisory opinion was built by the NGB based on the previous advisory opinion from NGB-GOMO.  The NGB official recommended disapproval of the applicant's request and stated:

	a.  The applicant reached his mandatory removal date (MRD) prior to the previous commander vacating his position in the 184th Transportation Brigade which made it impossible for the applicant to have been assigned to the O-7 position even if he had been nominated as a GOL.

	b.  The applicant did not receive an age waiver to meet the Federal recognition board (FRB) for GOL and subsequently met the board for the Adjutant General Corps only.  The records do not indicate he was placed in the GO billet prior to or after Senate confirmation.  If he had been placed in the AAG position from the date of Senate confirmation until his assignment to the Retired Reserve in August 2004, he would have been immediately Federally recognized and his MRD recalculated. 

20.  On 16 May 2012, the applicant submitted a rebuttal in which he restated the events that occurred in 2003/2004.  He stated:

	a.  He is aware that at this stage, some 8 years later, most all the major players have come and gone and he is on his own and at the mercy of this Board.  After serving 27 years in FA and nearing the end of an FA brigade command, MG Hxxxxn Hxxxxxxy, commanding the 184th TCE, requested that he be his deputy commander.  At the time, he (the applicant) did not know him, but he said he was pleased with the way his brigade command had gone and wanted the applicant to follow him once he retired.  The applicant chose to make the move and became very happy as a transportation officer.  As MG Hxxxxxxy's retirement drew closer, neither he nor the applicant could understand why TAG, at the time, refused to send his packet for BG forward.  He still does not know why unless it was the fact he came up in the 4th Battalion, 114th FA, and TAG came up in the 1st Battalion, 114th FA, and they were always competitive. Because of the intense rivalry between the battalions, he knows that this administration harmed the careers of other members of the 4th Battalion, so perhaps that is the reason for his situation. 

	b.  MG Hxxxxxxy and he were finally informed that the packet was going forward but late enough to require an age waiver.  He never saw the entire packet, but was told that the packet was a Federal recognition type GOL vice MG Hxxxxxxy, who would be retiring on or about 24 September 2004.  He was told by TAG's office that the age waiver was approved.  He now finds, for the first time ever, from the NGB memorandum that an age waiver was never approved.  

	c.  MG Hxxxxxxy and he thought everything was on track for him to take command upon his retirement.  In January of 2004, they had a new TAG appointed in Mississippi.  He was from the Air Guard, but he knew him well.  On or about 15 January of 2004, MG Hxxxxxxy came from a meeting of commanders with the new TAG where he found out that his packet had been sent forward as a Federal recognition type AGC vice the AAG position.  They had these questions: Why, after being a line officer for 30 years? Why AAG knowing full well that the position is appointed by the Governor of the state and was already filled? Why not GOL for the 184th?  It is also clear had he been placed vice MG Hxxxxxxy GOL, 184th TCE, that the MRD would have been recalculated.  Further, it is obvious that the NGB was never aware that his paper work should have left the state as GOL.  They do know that TAG and AAG are appointed by the Governor, and yes, had that been the case for him and he had been placed in that billet, his MRD would have been recalculated.   

	d.  The new TAG called him later and told him he would do everything he could to find him a position and get him promoted.  He too, could not understand why the above occurred and stated the need for him to command the 184th TCE. Over the next several months they discussed many options, such as borrowing a GO slot from an adjoining state, and transferring into the Army Reserve.  There were two problems with this; first with a Federal recognition type AGC there were no slots to be found in both the Guard and the Reserve.  Second, as hard as TAG tried, he was Air Force and did not fully understand the Army system.  He finally called him 25 days before his MRD and stated he had run out of options and told him if he wanted to try politically to do so.

	e.  Many times the only option a guardsman has at this level is the Washington ties.  Backed into a corner and with his blessings, he contacted his senior Senator from Mississippi.  He knew his chief of staff well, and they discussed the possibility of extending his MRD for 6 months in order to work out something.  During that short time, he encountered some personal issues and he was out of his office for a month, and when he came back, he (the applicant) was already past his MRD and retired.  He called some 30 days later and gave him (the applicant) his regrets and informed him that he, the Senator, and their military liaison had looked at his entire packet and situation and said, "It is a crime what they did to you."

	f.  As he stated in this application, he was not aware of this process for several years until a high ranking Air Guard person who knew entirely about what happened to him told him about the change of records.  Furthermore, he has talked with the person who was the G-1 for the state during the time that his paper work was submitted.  He asked if he knew why TAG, at that time, changed him from GOL to AGC.  His answer was disturbing.  He said he informed TAG that if the paper work was changed from GOL to AGC that the promotion would never take place.  However, he was told to go ahead and send it in that way. That G-1 is now the new TAG of Mississippi.


	g.  In summary, he worked very hard for 36 years to serve his state and nation well and perhaps become a GO.  He asks this Board to consider facts and grant him in retirement what was wrongfully taken from him for no justifiable reason. 

21.  NGR 600-100 provides procedures for processing all applications for Federal recognition.  It states officers in the rank of BG or COL must be removed from an active status of the ARNG at completion of 30 total years of service or the fifth anniversary of the officer's date of appointment in that grade.  Additionally, paragraph 11-4 (Prerequisites for consideration for Federal recognition in GO grades) states in order to be considered for Federal recognition in a GO grade, the candidates must meet several requirements, as stated in paragraphs 11-4a through 11-4m:

	a.  Paragraph 11-4a states one of the requirements is holding an appointment in the ARNG of a State, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, or the District of Columbia in the grade for which being considered.  

	b.  Paragraph 11-4d states the candidate must be in an active status at the time a Federal evaluation board (FEB) is convened.  This requirement is not applicable to State AGs or retired Regular Army officers appointed to GO grade as State AAG. 

	c.  Paragraph 11-4e states the candidate must have served continuously for 5 years in an active status immediately preceding consideration by an FRB.  When recommended by the board, this requirement may be waived by the Secretary of the Army if an officer has been in an inactive status for no more than 2 years during the 5-year period.  A commissioned officer who has been in an inactive status may not be considered for promotion until at least one year after the date on which he/she is returned to active status (Title 10, U.S. Code, section 3364(e)).  This requirement is not applicable to State TAGs or retired Regular Army commissioned officers appointed to GO grade as State AAGs. 

22.  Army Regulation 135-156 (Reserve Component General Officer Management) governs the responsibilities, policies, and personnel management procedures pertaining to Reserve of the Army general officer authorizations, assignments, promotions, and Federal recognition.

	a.  Paragraph 2-1 (Strength limitations) states under the provisions of Title 10, U.S. Code, section 12004(a), the authorized strength of Army Reserve Component GOs in an active status is 207.  The U.S. Army Reserve is 

authorized 115 GOs in an active status, and the ARNG is authorized 92 federally recognized General Officers of the Line (GOL) in an active status.  Officers nominated may be nominated for one of two qualifications, GOL or Adjutant General Corps (AGC).  Officers carrying a GOL qualification may serve in a variety of billets (e.g., commander, chief of staff, and staff or command billets).  However, officers carrying an AGC qualification, as in the applicant’s case, may only serve in the positions of AG or Assistant AG of a state National Guard.  Because he carried an AGC qualification, he was only eligible for promotion if assigned to a TAG or an AAG billet.

	b.  Paragraph 5-2 (Selection and advisory board requirements) states for ARNG GOFRB, the prerequisites and procedures for consideration for ARNG GOFRB and issuance of certificates of eligibility in GO grades are set forth in Title 32, U.S. Code, section 307 and NGR 600–100.  The GOFRB will ordinarily be convened semiannually by the Secretary of the Army with supplemental boards convened as needed.  Eligibility criteria for GOFRB consideration are contained in NGR 600–100, which may be supplemented by the Secretary of the Army (or his/her designee).  The Chief, NGB GO Management Office (GOMO) will issue board guidance via electronic mail, and this guidance will be posted.

	c.  Paragraph 5-5 states an ARNG officer is considered to be recommended for promotion to O–7 or O–8 in the Reserve of the Army on the date when the Secretary of the Army approves and forwards to the Office of the Secretary of Defense the GOFRB recommendation that the officer receive Federal recognition in the next higher grade as a GOL or as an AGC.  An ARNG officer who is granted a certificate of eligibility for Federal recognition as an O–7 or O–8 is considered to be recommended for promotion on the date the officer is assigned to the GO position for which the officer was granted the certificate of eligibility.

	d.  Paragraph 5-6 (Promotions, How Made), states consistent with NGR     600–100, the Chief, NGB will establish policies and procedures to tender Federal recognition to eligible ARNG officers.  The Chief, Army Reserve will request that DA GOMO publish promotion orders for officers in the following manner, within statutory and regulatory strength limits.  All O–6s in an active status may be promoted once they are confirmed by the Senate for promotion to O–7 and assigned to the higher grade billet.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the MSARNG from 16 August 1974 to 31 August 2004, with prior enlisted service.  He was promoted to COL on 10 April 1998.  He completed the USAWC on 21 July 2000 and he served as the brigade commander, 631st FA Brigade from June 1998 to January 2001.  
2.  In March 2001, the MSARNG published official orders ordering his release from his assignment as the brigade commander and transferring him to the position of Deputy Commander, 184th Transportation Brigade, effective 15 April 2001.  His OERs for the periods 31 January 2002 through 30 January 2003 and 31 January 2003 through 1 April 2003 confirm his principal duty title as deputy commander, 184th Transportation Brigade. 

3.  In June 2003, the applicant was nominated by TAG to meet the June 2003 ARNG FRB for a COE to serve as a BG with GOL qualification.  Under requirements in place at the time, officers meeting the board for a GOL qualification to serve in the grade of BG must not have attained the age of 56 prior to the board convening.  He was born on 4 February 1947 and turned 56 in February 2003.  The NGB GOMO informed TAG that the applicant was not eligible to meet the board for GOL but could meet the board for AGC qualification as the age restriction for AGC was age 58.

4.  The NGB GOMO also advised TAG he could request the Secretary of the Army waive the age restriction to allow the applicant to meet the board for GOL albeit there was little chance of the waiver being approved due to the Secretary of the Army's verbal opposition to age waivers and it would be better to nominate the applicant for AGC only and nominate another officer as a candidate for GOL position.  TAG then nominated the applicant for an AGC COE against the position of AAG.  The applicant subsequently met the board for AGC and was Senate confirmed for COE on 11 March 2004.

5.  The applicant did not receive an age waiver to meet the FRB for GOL.  He met the board for AGC only.  NGB-GOMO's records do not indicate he was placed in a GO billet prior to or after Senate confirmation.  It would have been the governor’s prerogative to appoint him or another officer to an AAG position.  It appears the governor elected not to select the applicant.  The applicant’s MRD then came up and he was transferred to the Retired Reserve. 

6.  In view of the foregoing evidence, he is not entitled to the 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)                                         AR20110008345



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ABCMR Record of Proceedings (cont)                                         AR20110008345



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