IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20110014863 


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:

   a.  promotion to the rank of Brigadier General (BG) in the Army National Guard (ARNG), with a date of rank (DOR) of 23 December 2010, and entitlement to back pay and allowances;

   b.  evaluation of the adverse information presented to the General Officer Federal Recognition Board (GOFRB) against the Secretary of the Army (SA) policy, dated 22 January 2007;

   c.  that the adverse information considered by the GOFRB be considered minor for all reporting requirements in accordance with Department of Defense Instruction (DODI) 1320.4 (Military Officer Actions Requiring Approval of the Secretary of Defense (SecDef), or the President, or Confirmation by the Senate); and

   d.  a personal appearance/hearing.

2.  In the alternative, he requests consideration by the October 2011 GOFRB for promotion to BG.  

3.  The applicant states:

   a.  on 25 May 2010, a GOFRB considered his record for promotion to BG and when the record was reviewed substantiated adverse information was reviewed from a Department of the Army Inspector General (DAIG) investigation initiated in 2004;

   b.  the GOFRB recommended him for promotion and the Senate approved the May 2010 GOFRB (without his name); he was removed from the May 2010 promotion list without any consideration of due process;
   
   c.  the Army Secretariat – specifically the Department of the Army General Officer Management Office (DA GOMO) actions are unclear; they failed to follow statutory, regulatory, and procedural requirements concerning the handling and notification of adverse information;
   
   d.  Army Directive 2010-10 (Enhancement of the Promotion Review Board (PRB) Process) was released less than 90 days after the DA GOMO pursued this flawed administrative action to protect officers like him; and

   e.  the Army did not follow the established process; his promotion was delayed and the procedure required in Title 10, U.S. Code (USC), section 14311 was not followed.  The Army provided adverse information to the SA and possibly the Federal Recognition Board (FRB) without notifying him or allowing him to comment.

4.  The applicant provides:

* a self-authored executive summary of what occurred, page titled:  Summary, and description of events
* SA Memorandum, dated 22 January 2007, Subject: Policy Concerning Adverse Information for Officers Being Considered for Promotion, Appointment, or Federal Recognition to a GO Grade
* SA Redacted Memorandum, dated 9 September 2010, Subject: ARNG GO Nominations
* DA GOMO Redacted Memorandum, dated 5 November 2010, Subject: Reserve Component (RC) GO Nomination [Applicant], ARNG – Decision Memorandum
* DA GOMO Redacted memorandum, dated 23 November 2010, Subject: RC GO Withdrawal
* Undated/unsigned page, Subject: Investigations Division, DAIG, Review of IG Action Request, Case Number 04-XXXX (DAIG 10-XXXXX)
* DA Letter, undated/unsigned from DA Senior Leader Development (SLD) officials to [Applicant]
* Letter, dated 12 May 2010, from [Applicant] to President, May 2010 GOFRB
* Letter, dated 25 May 2010, from DA SLD officials to [Applicant] 
* Redacted Memorandum, dated 10 May 2010, Subject: Memorandum of Instruction (MOI) – May 2010 ARNG GOFRB
* Annex A, Administrative Information – May 2010 ARNG GOFRB
* Printout of Title 10, USC, section 614 (Notice of Convening of Selection Boards)
* Printout of Title 10, USC, section 618 (Action on Reports of Selection Boards)
* Printout of Title 10, USC, section 624 (Promotions – How Made)
* Printout of Title 10, USC, section 629 (Removal from a List of Officers Recommended for Promotion)
* Printout of Title 10, USC, section 14107 (Information Furnished by Secretary Concerned to Promotion Boards)
* Printout of Title 10, USC, section 14111 (Reports of Selection Boards: Transmittal to President)
* Printout of Title 10, USC, section 14311 (Delay of Promotions: Involuntary)
* Letter, dated 10 January 2011, Subject: Applicant's Request for Information Under the Freedom of Information Act (FOIA)
* Unsigned letter, dated 20 February 2011, from the applicant to the Office of the Judge Advocate General (OTJAG)
* Letter, dated 22 April 2011, from the Chief, Administrative Law Division, OTJAG, to the applicant
* Letter, dated 14 March 2011, from Chief Counsel, National Guard Bureau (NGB), to the applicant
* Army Directive 210-10, dated 3 December 2010
* Redacted Memoranda, dated 2 March and 20 September 2010, Subject: Status of Army Officers (2010 May GOFRB)
* Email exchanged between applicant and officials at DA SLD
* Self-authored questions by the applicant for the Board to investigate/research

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant (2LT) and he executed an Oath of Office on 27 July 1989. 

2.  He was appointed as a 2LT in the Virginia ARNG and executed an Oath of Office on 1 December 1989.  He served in a variety of stateside or overseas assignments and he was promoted to lieutenant colonel (LTC) on 
10 July 2003.  


3.  In March 2004, the DAIG received an anonymous complaint through the Department of Defense IG Hotline alleging the applicant, then an LTC, had brought back live M-16 ammunition from a temporary duty trip and left it unsecured in his office.  The evidence did not support the findings and the DAIG unsubstantiated this allegation.  However, on 23 May 2005, the DAIG amended the original report and substantiated an allegation that the applicant, then an LTC, improperly provided non-government issued ammunition to subordinates for use in military weapons, in violation of Army Regulation (AR) 190-14 (Carrying of Firearms and Use of Force for Law Enforcement and Security Duties).  The evidence reflected that:

   a.  when the subordinates were transporting weapons from temporary storage in Fredericksburg, VA, to Federal storage in Richmond, VA, the applicant provided one of them with two magazines of commercial ammunition;

   b.  he testified that he knew he was not supposed to put civilian ammunition in a military weapon; and

   c.  he felt it was just too hard to get the ammunition in that short amount of time and he felt the action was necessary because he wanted to protect Soldiers and the weapons.

4.  He also served in the Hawaii ARNG from October 2004 through March 2006, completed the Army War College from May 2004 through July 2006, and he was awarded area of concentration (specialty) 50A (Strategic Plans Officer) in July 2006.  Additionally, on 4 March 2008, the NGB published Special Orders Number 60 AR extending him Federal recognition for promotion to colonel effective 
4 March 2008.

5.  On 2 March 2010, a records screen was requested on officers eligible for the May 2010 GOFRB (the applicant was one of these individuals) and on 13 April 2010, the DAIG informed GOMO that the applicant was the subject of an ongoing inquiry.

6.  On 10 May 2010, the SA issued an MOI for the May 2010 ARNG GOFRB and outlined the membership, qualifications, promotion objectives, requirements, and guidance.  Personnel from DA and GOMO were authorized to provide administrative information to board members.  The board would certify that it carefully considered any adverse information it was provided.  The instructions stated "it is wholly within your discretion to recommend a clearly deserving officer for promotion despite adverse information." 

7.  On 12 May 2010, by letter, an SLD official provided the applicant correspondence related to the 25 May 2012 GOFRB, including the DAIG summary of the substantiated adverse information and provided him an opportunity to comment prior to presenting the adverse information to the GOFRB.  He was also provided a suspense date of 19 May 2010 to submit comments. 

8.  In a letter, dated 12 May 2010, to the President of the May 2010 GOFRB, the applicant indicated "the allegation is true and for that I accept responsibility."  He stated that he made the decision pertaining to the ammunition because of the dangerous location of the armory in Richmond and the urgency of the situation.  

9.  On 25 May 2010, by letter, an SLD official notified the applicant that the SA or his representative decided the adverse information against him and his comments would be shown to the May 2010 GOFRB.

10.  On 9 September 2010, by memorandum to the SecDef, the SA forwarded the names of 40 officers for nomination and appointment as GOs.  The FRB reviewed the adverse information pertaining to the applicant and his name was withheld by the SA.  The other nominations were processed separately to prevent a delay of the nomination scroll.  The SA was provided three courses of action (COA):

* COA Number 1: Nominate the applicant for Federal recognition
* COA Number 2: Disapprove the board's results; notify the Chief, NGB (CNGB), of the action and notify the applicant he would be eligible for future consideration
* COA Number 3: Disapprove the board's results, notify the CNGB of the action, and notify the applicant he would not be eligible for future consideration

11.  In a decision memorandum, dated 13 October 2010, the Chief, GOMO, requested through the Assistant SA (Manpower and Reserve Affairs)) (ASA (M&RA)) and Vice Chief of Staff, Army (VCSA), that the SA approve suspension of the 22 January 2007 policy requiring the Adverse Panel review potential adverse information on officers considered by GO boards due to a change to Title 10 that expanded the definition of adverse and reportable information.  The SA approved the recommendation on 28 October 2010.  The SA's policy, dated 22 January 2007, concerning adverse information for officers considered for promotion, appointment, or Federal recognition to a GO grade an adverse panel is co-chaired by the ASA (M&RA) and VCSA.  The advisory members are Deputy General Counsel (Operatiosn and Personnel); Inspector General; TJAG; and Provost Marshal general/CG CID; or a representative appointed to represent that individual.  The Director, SLD, or his/her designated representative serves as a recorder.

12.  On 5 November 2010, in a decision memorandum through the ASA (M&RA) and VCSA - both of which recommended COA Number 1 - the Chief, GOMO, recommended the applicant for Federal recognition in the grade of BG.  

13.  After an OTJAG legal review for sufficiency, the SA elected COA Number 2. He disapproved the recommendation and stated the applicant may be considered by a subsequent GOFRB. 

14.  In a memorandum, Subject: Army Directive 2010-10, dated 3 December 2010, the SA stated in all cases referred to the PRB on the basis of adverse information, a complete copy of the base report from which the adverse information was drawn, redacted as required, would be provided to the officer at issue for review in advance of the PRB.

15.  On 20 April 2011, the applicant requested reconsideration of his nomination for BG; on 6 May 2011, he requested reconsideration of the decision to withhold his nomination; and on 22 July 2011, he applied to this Board.   

16.  An advisory opinion was originally addressed to the NGB, then forwarded to GOMO, and subsequently referred to the DAIG.  The DAIG provided the applicant a redacted copy of the IG Report on 25 April 2012 in response to his FOIA request.  On 8 May 2012, the DAIG also provided a detailed analysis of the applicant's issues.  The advisory opinion states:

	a.  On 19 September 2011, the applicant complained to the DAIG about actions related to the May 2010 GOFRB.  

	b.  On 7 October 2011, the DAIG informed the applicant that he was not removed from a promotion board under Title 10, USC, section 14111.  There is a difference between a promotion action and the Federal recognition of a promotion:

       (1)  National Guard Regulation (NGR) 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) addresses the Federal recognition of ARNG officers.  It states appointments and promotions of ARNG officers to GOs are a function of the State concerned, as distinguished from the Federal recognition of such appointment or promotion.   

       (2)  Title 32, USC, section 307 (Federal Recognition of Officers) states a board of officers would be convened by the SA to determine the fitness of officers for Federal recognition as a GO.  The SA must approve those officers recommended for Federal recognition by the board.  Although the May 2010 GOFRB recommended the applicant, the SA disapproved the recommendation and stated the applicant could be considered by a subsequent FRB.  

   c.  On 13 October 2011, the DAIG met with the applicant to further address his concerns.  He requested that the DAIG conduct a due process review of the actions related to his Federal recognition and subsequent promotion action by GOMO.  

   d.  Conclusion:  The preponderance of the evidence indicated the applicant received the required administrative due process in the actions regarding the GOFRB process.  The evidence also did not support the applicant's contention that his misconduct was minor.  He was being considered for issuance of a Certificate of Eligibility (COE) for promotion to GO.  He was not being considered for promotion to GO.  The GOFRB was not a promotion selection board.  Receipt of a COE meant that should the NGB or the State decide to place him in a GO position he could be federally recognized as a GO upon occupying the GO position.  

   e.  NGR 600-100 clearly states appointments and promotions of ARNG officers is a function of the State as distinguished from the Federal recognition of such appointment or promotion.  The conduct of the FRB was governed by Title 32, USC, section 307, DODI 1320.4 and DODI 1320.14 (Commissioned Officer Promotion Program Procedures); and NGR 600-100 was separate and distinct from the promotion of ARNG officers to BG.  

17.  The advisory opinion also provided a chronological background of events that led to the disapproval of the applicant's recommendation.  It also listed:

	a.  The standards (statutory and regulatory) that apply in the applicant's case (Title 32, USC, section 307; DODI 1320.4, dated 14 March 1995; and DODI 1320.14, dated 24 September 1996).

	b.  The documents/printouts (statutory and regulatory) cited by the applicant (do not apply in his case):  Title 10, USC, sections 811, 615, 14111, 14311, 14903, and 3583; AR 600-8-19 (Officer Promotions), dated 25 February 2005; AR 190-14; SA Memorandum, dated 22 January 2007; Under SecDef Memorandum, dated 12 February 2007; May 2010 GOFRB MOI.

18.  The advisory opinion provided the following discussion:

	a.  The applicant was being considered for a COE for promotion to GO.  He was not being considered for promotion to GO.  The GOFRB was not the promotion selection board.  Receipt of a COE meant if the NGB or State decided to place him in a GO position, he would be federally recognized as a GO upon occupying a GO position.  

	b.  The conduct of FRBs is governed by Title 32, USC, section 307; DODI 1320.4, and DODI 1320.14.  It was separate and distinct from the promotion of ARNG officers to BG.

	c.  The January 2007 SA memorandum prescribed procedures for consideration of ARNG officers for Federal recognition to GO:

		(1)  Adverse information was defined as any substantiated finding or conclusion from an officially documented investigation except records of minor offenses that did not result in personal harm, significant property damage, or information that was more than 10 years old.  This definition was arrived at in coordination with the responsible DOD/Office of the SecDef agencies involved in actions related to GOs. 

		(2)  SLD/GOMO was required to conduct name checks on all eligible officers for FRBs and review all adverse finding reports.  They had the authority to exclude information from presentation to the GOFRB that constituted minor offenses such as traffic accidents or violations that did not include drugs or alcohol and that did not result in personal harm and when the total of property damage was less than $5,000, reports of late payments that were less than $500, reports of late payment/indebtedness from no more than five accounts in circumstances in which the total was less than $5,000 and the accounts were current, or when the substantiated finding is older than 10 years.  Any such information was not considered adverse information and would not be referred to the Adverse Panel or be shown to the GOFRB.  

		(3)  If the information is to be referred to the Adverse Panel, SLD/GOMO would provide a copy of the information to the officer and inform him that the information was being evaluated to determine if it must be shown to the GO board; that the officer had the right to provide written comments on it, and that if shown to the GO board his comments would also be provided.

		(4)  Each advisory member of the Adverse Panel would provide his recommendation to the co-chairs of the Adverse Panel who would determine if the information would be shown to the FRB.

	d.  The applicant had adverse information that was not related to traffic, late payment, and was not older than 10 years.  Accordingly, it did not meet the definition of a minor offense.  He was informed that the adverse information would be seen and he provided an immediate reply.  SLD officials provided the adverse information and his reply to the Adverse Panel that determined such information would be provided to the GOFRB.  The GOFRB considered the information and recommended to the SA that he be granted Federal recognition.  At this point – post GOFRB – there was no GOMO policy on the procedures to be followed by SLD/GOMO regarding officers with adverse information considered by the GOFRB and still recommended for Federal recognition.  The GOFRB report required SA approval before Federal recognition could be extended.  

	e.  The GOMO standard required removal of the applicant's name from the GOFRB report and handled separately as not to delay processing other officers with no adverse information and to allow the SA to adequately review the applicant’s adverse information in arriving at a decision.  Such action is within DODI 1320.4 which states before the SA submitted a nomination with adverse information to the SecDef, the responsible Army staff would be encouraged to consult with their DOD counterparts on the content of the summary of the adverse information, and the SA would review all adverse information during the last 10 years of an officer's career.  

	f.  It is noted the applicant was not removed from a promotion list and that even if granted a COE there was no requirement to promote him as a result of such action.  A COE has no impact on the recipient's pay, benefits, or rank/grade.  The matter of adverse information was required to be forwarded to the SA; however, the SLD/GOMO handled it as a normal staffing action.  The packet contained no new information related to the adverse information although it was submitted differently.

	g.  There is no credible evidence that the applicant was denied any required administrative process in the GOFRB action.  In the absence of written guidance, the actions of the SLD/GOMO following the GOFRB were prudent, reasonable, and did not prejudice the required action by the SA to decide on the applicant's Federal recognition. 

	h.  The AO continues to state as for his contentions:  

* Sections 611, 615, 14111, 14311, 14902, and 14903 of Title 10, USC, were not directly applicable to the applicant's situation
* The DODI clearly shows his misconduct was not minor 
* The evidence does not support his contention that the SLD/GOMO denied him due process
* Contrary to his claim that he was removed from a promotion list, he was not on a promotion list 
* Contrary to his contention that his promotion was delayed, he was not recommended for promotion; he was recommended for Federal recognition
* Contrary to his contention that his name was removed from the promotion list without the benefit of a PRB, he was not on a promotion list
* His claim that he was not provided reasonable time to respond to the adverse information is not supported because the word "reasonable" in AR 600-8-29 applies to promotions; it does not apply to FRB, in any case he provided a response and did so immediately
* There is no standard requiring notification of the SLD's post-GOFRB action 
* The action pertaining to him is not a promotion action and the standards he cites do not apply to a GOFRB; there is no PRB requirement pertaining to a GOFRB
* The adverse information that was seen by the ASA (M&RA), VCSA, and SA is the same information he (the applicant) saw
* Post-board procedures used by the SLD/GOMO pertaining to GOFRB were not recorded in a policy memorandum 

19.  The applicant submitted a rebuttal on 13 June 2012 in which he disagreed with the advisory opinion.  With his rebuttal, he provided additional evidence in the form of tabs as follows:

	a.  Tab A with 27 enclosures (the same enclosures he provided with his initial submission).

b.  Tab B wherein he discusses six issues in discrediting the DAIG opinion.

	c.  Tab C with 14 enclosures showing the State Adjutant General recommended him for various BG positions.

20.  In his rebuttal he also stated the:

	a.  DAIG inaccurately excluded section 14311, Title 10, USC, which applies to Reserve Active Status List (RASL) officers

	b.  DAIG acknowledged GOMO made a judgment call in the absence of any procedural guidance after the GOFRB recessed.  GOMO, in effect, usurped the authority of the SA, the President, and Congress, and is in violation of the Constitution.

	c.  DAIG's contention that sections 14311, 14110, and 14903 are not applicable to his case is absolutely false.  These sections apply to officers on the RASL.  Such a fundamental mistake by the DAIG calls into question their integrity and the validity of the entire report. 

	d.  DA GOMO acted in an arbitrary and capricious manner in handling his case.

	e.  DAIG made many mistakes in their analysis and process.  The DAIG advisory report overstates the authority of NGR 600-100 and does not provide analysis of the interaction between Titles 10 and 32.  Additionally, the DAIG does not adequately address the responsibilities of the Adverse Panel. 

21.  Additionally, in his rebuttal the applicant stated he was amending his application to this Board and he further requests that:

* his nomination for Federal recognition as a BG be forwarded through the SecDef and President for Senate Confirmation
* the Adverse Panel determination that substantiated allegations be changed to minor and not reportable in accordance with DODI 1320.4
* once confirmed for Federal recognition by the Senate, he requests promotion to BG with an effective DOR of 23 December 2010
* the Board obtain copies of letters with DA GOMO from senior leaders that were intended to be presented to the SA with his letter requesting reconsideration, consider them, and include them with any recommendation presented to the SA

22.  Finally, in his rebuttal, he states that on 5 June 2012, in response to a request for information, he received an FOIA response from the General Counsel.  That response shows officials at GOMO gave the SA an allegation for which he (the applicant) was exonerated of any wrongdoings.  The entry states the allegation was unsubstantiated.  Not only should this information not have been presented to the SA, it was done so without informing him or providing him an opportunity to respond and this violates his due rights.

23.  AR 190-14 provides guidance on the carrying of firearms and the use of force by personnel engaged in law enforcement and security duties.  It states in paragraph 2-6 that weapons may be carried off an installation by DA personnel engaged in official duties when authorized by officers of field grade rank or higher or civilian equivalent of grade GS–12 or above.  Only Government-owned and Government-issued weapons and ammunition are authorized to be carried by DA personnel while performing official duties.  The SA may authorize an exception to this requirement for Army investigative organizations. 

24.  AR 600-8-29 prescribes the policies and procedures for promotion of commissioned officers on the active duty list (ADL).  It states before a selection board report is approved by the President, the officer recommended for promotion may be removed only by the President.  If the SA recommends approval from the selection board report and the recommendation includes information not presented to the selection board, the information will be made available to the officer to submit comments within a reasonable period.  A reasonable opportunity is considered to be 14 days from the date of receipt of such information.  

25.  NGR 600-100 provides procedures for processing all applications for Federal recognition.  It states the appointment and promotion of officers in the ARNG is a function of the State concerned as distinguished from the Federal recognition of such appointment or promotion.  These appointments and promotions may be federally recognized by the Chief, NGB, under such regulations as the SA may prescribe and under the provisions of this regulation.  Officers who are Federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the ARNG of the United States if they have not already accepted such appointment.

	a.  Upon announcement by the CNGB that a GOFRB will be convened by the SA, the State will submit officers for consideration to the CNGB who would forward a list to the GOFRB.  Under the provisions of Title 32, USC, section 307, a board will be convened by the SA to determine the fitness of candidates for Federal recognition in GO grades.  Board reports will be forwarded through the Chief of Staff, Army, to the SA for action.

	b.  The CNGB will extend Federal recognition to those officers found qualified by the board and approved by the SA after Senate confirmation of appointment. 

26.  Title 32, USC:

	a.  Section 307(a) states to be eligible for Federal recognition as an officer of the National Guard a person must (1) receive an appointment with a view to filling a vacancy in a federally recognized unit or organization of the National Guard; (2) have the qualifications prescribed by the Secretary concerned for the grade, branch, position, and type of unit or organization involved; and (3) except as provided in subsections (d) and (e) of this section, pass an examination for physical, moral, and professional fitness to be prescribed by the President, and subscribe to the oath of office prescribed by section 312 of this title.

	b.  section 307(d) states subject to subsection (a)(1) and (2) and to such physical examination as may be prescribed, Federal recognition shall be extended to each officer of the Army Reserve who has qualified for appointment as an officer of the Army National Guard in his reserve grade. Federal recognition extended under this subsection is effective from the date of appointment in the Army National Guard or the Air National Guard, as the case may be.

27.  DODI 1320.4 states in:

	a.  Paragraph 3.1, adverse information is any substantiated adverse finding or conclusion from an officially documented investigation or inquiry. 

	b.  Paragraph 4.1 the Secretaries of the Military Departments shall follow standard procedures when submitting military personnel officer actions requiring approval of the President or the SecDef, or confirmation by the Senate. These procedures shall enable the Secretaries of the Military Departments to determine what information is required for a nomination, when to submit a nomination, and the format to use when nominating an officer(s) for military officer personnel actions.  Those military officer personnel actions requiring approval by the President or confirmation by the Senate shall be treated as Presidential correspondence.

28.  DODI 1320.14 states in:

	a.  Paragraph 5.3.1, the Secretaries of the Military Departments shall administer promotion and selection programs of their Military Departments, ensuring compliance with this Instruction and all applicable laws.

	b.  Paragraph 5.3.16, the Secretaries of the Military Departments shall develop and issue written procedures, as deemed necessary, including regulations, to implement the following RC programs, including Federal recognition pertaining to the Army National Guard of the United States and the Air National Guard of the United States as covered in Title 10, USC, section 14316 of reference (b).

	c.  Paragraph 6.1.3, communications about Particular Officers.  Information about a particular officer may be communicated to a promotion selection board as follows:  6.1.3.2.1. Information in an eligible officer's official military personnel records, as defined in regulation by the Secretary of the Military Department concerned, and provided to the promotion selection board in accordance with this Instruction; 6.1.3.2.2. Information, including the opinion of third parties, submitted to promotion selection boards by eligible officers under Section 614(b) or 14106 of Title 10, USC (reference (b)), this Instruction, and the regulations of the Military Department concerned; 6.1.3.2.3. Information that is not part of the official military personnel record of an officer, but which the Secretary of the Military Department concerned, or a civilian official appointed by the President by and with the advice and consent of the Senate and designated by the Secretary concerned, determines to be substantiated and relevant information that he or she considers might reasonably and materially affect the deliberations of the promotion selection board. In making such a determination, the Secretary of the Military Department concerned, or designee, must ensure that the procedures for identifying and proposing such information for consideration apply to all eligible officers in, above, or below the promotion zone for the board concerned.  Additionally, the Secretary concerned must ensure that the officer is notified that such information will be presented to the promotion selection board; is provided a copy of the information that will be provided to the promotion selection board; and is afforded a reasonable opportunity to submit written comments on that information to the promotion selection board.

29.  Title 10, USC:

	a.  Section 611 states whenever the needs of the service require, the Secretary of the military department concerned shall convene selection boards to recommend for promotion to the next higher permanent grade, under subchapter II of this chapter, officers on the ADL in each permanent grade from first lieutenant through brigadier general in the Army, Air Force, or Marine Corps and from lieutenant (junior grade) through rear admiral (lower half) in the Navy. 

	b.  Section 615 states no information concerning a particular eligible officer may be furnished to a selection board except for the following:  (A) Information that is in the officer's official military personnel file and that is provided to the selection board in accordance with the regulations prescribed by the SecDef pursuant to paragraph (1). ( B) Other information that is determined by the Secretary of the Military Department concerned, after review by that Secretary in accordance with standards and procedures set out in the regulations prescribed by the SecDef pursuant to paragraph (1), to be substantiated, relevant information that could reasonably and materially affect the deliberations of the selection board.  (C) Subject to such limitations as may be prescribed in those regulations, information communicated to the board by the officer in accordance with this section, section 614(b) of this title (including any comment on information referred to in subparagraph (A) regarding that officer), or other applicable law.  (D) A factual summary of the information described in subparagraphs (A), (B), and (C) that, in accordance with the regulations prescribed pursuant to paragraph (1), is prepared by administrative personnel for the purpose of facilitating the work of the selection board (4) Information provided to a selection board in accordance with paragraph (2) shall be made available to all members of the board and shall be made a part of the record of the board.  Communication of such information shall be in a written form or in the form of an audio or video recording.

	c.  Section 14111:

		(1) Sub-section (a) states the Secretary concerned, after final review of the report of a selection board under section 14110 of this title, shall submit the report with the Secretary’s recommendations, to the SecDef for transmittal by the Secretary to the President for approval or disapproval.  If the authority of the President to approve or disapprove the report of a promotion board is delegated to the SecDef, that authority may not be re-delegated except to an official in the Office of the SecDef.

		(2)  Sub-section (b) states (1) except as provided in paragraph (2), the name of an officer recommended for promotion by a selection board may be removed from the report of the selection board only by the President; and (2) in the case of an officer recommended by a selection board for promotion to a grade below brigadier general or rear admiral (lower half), the name of the officer may also be removed from the report of the selection board by the SecDef or the Deputy SecDef.

		(3)  if the Secretary of a Military Department or the SecDef makes a recommendation under this section that the name of an officer be removed from the report of a promotion board and the recommendation is accompanied by information that was not presented to that promotion board the information shall be made available to that officer.  The officer shall then be afforded a reasonable opportunity to submit comments on that information to the officials making the recommendation and the officials reviewing the recommendation.  If an eligible officer cannot be given access to such information because of its classification status, the officer shall, to the maximum extent practicable, be provided with an appropriate summary of the information.

	d.  Section 14311 states under regulations prescribed by the SecDef, the appointment of an officer to a higher grade may be delayed if any of the several reasons applies before the date on which the appointment would otherwise be made.  

	e.  Section 14903 states the Secretary of the Military Department concerned shall convene a board of inquiry at such time and place as the Secretary may prescribe to receive evidence and review the case of any officer who has been required to show cause for retention in an active status under section 14902 of this title. 

	f.  Section 3583 states all commanding officers and others in authority in the Army are required - (1) to show in themselves a good example of virtue, honor,
patriotism, and subordination; (2) to be vigilant in inspecting the conduct of all persons who are placed under their command; (3) to guard against and suppress all dissolute and immoral practices, and to correct, according to the laws and regulations of the Army, all persons who are guilty of them; and (4) to take all necessary and proper measures, under the laws, regulations, and customs of the Army, to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge.

30.  AR 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s 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 the applicant is 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.

2.  When the SA issued the MOI for the May 2010 ARNG GOFRB and outlined the membership, qualifications, promotion objectives, requirements, and guidance, he also issued administrative information related to this FRB.  The MOI and instructions gave the SLD/GOMO its authority to provide administrative information to board members and the board was ordered to carefully consider any adverse information it was provided.  

3.  As required by regulatory guidance, SLD official provided the applicant correspondence related to the 25 May 2010 GOFRB, including the DAIG summary of the substantiated adverse information and provided him an opportunity to comment prior to presenting the adverse information to the GOFRB.  Not only was this information previously substantiated and not only was the applicant fully informed of this information, he submitted a letter to the President of the May 2010 GOFRB two days later indicating the allegation was true and that he accepted responsibility.  It is clear that no due process was violated in this action.  

4.  The May 2010 ARNG GOFRB reviewed officers for Federal recognition (not promotion), including the applicant's adverse information.  The GOFRB recommended him for Federal recognition despite the adverse information contained in his record (he improperly provided non-government issued ammunition to a subordinate for use in a military weapon).  His nomination (not promotion) was held up to allow the remainder of the list to be processed without delay.

5.  Although the GOFRB recommended him for Federal recognition and although the Chief, GOMO, ASA (M&RA), and VCSA concurred with the recommendation, the SA exercised his authority and disapproved the May 2010 ARNG GOFRB board results pertaining to the applicant.  He further ordered that the CNGB be notified of the disapproval and that the applicant be advised he would be eligible for consideration by a future GOFRB.  

6.  With respect to his contentions:

	a.  Promotions and Federal recognition are two distinct actions.  The GOFRB is not a promotion board and the applicant was not being considered for promotion.  He was being considered for issuance of a COE for promotion to GO. Receipt of a COE meant that should the NGB or the State decide to place him in a GO position, he could be federally recognized as a GO upon occupying the GO position.  

	b.  The applicant claims the DAIG report overstates the authority of NGR
600-100, which clearly states appointments and promotions of ARNG officers are a function of the State as distinguished from the Federal recognition of such appointment or promotion.  The DAIG report cites the proper authority.  

	c.  The applicant claims the DAIG report does not provide analysis of the interaction between Titles 10 and 32.  The conduct of the FRB was governed by Title 32, USC, section 307, DODI 1320.4 and DODI 1320.14, and NGR 600-100. 

	d.  The applicant claims the DAIG report does not adequately address the responsibilities of the Adverse Panel.  The responsibilities of the Adverse Panel are defined in the MOI and administrative instructions.  Such MOI was available to the applicant prior to the May 2010 FRB and remains so today. 

	e.  The applicant contends the substantiated allegation against him was minor.  However, the January 2007 SA memorandum defined adverse information as any substantiated adverse information from an officially documented investigation (in this case the DAIG investigation) except a minor offense that did not result in personal harm or property damage or information that was more than 10 years old.  The applicant's misconduct does not fit the definition of "minor" and his dissatisfaction with this definition is not grounds to make it so. 

	f.  The applicant cites section 611, Title 10, USC, which is not applicable in his case.  Section 611 pertains to convening selection boards to recommend for promotion to the next higher permanent grade officers on the ADL. 

	g.  The applicant cites section 615, Title 10, USC, is not directly applicable in his case.  Section 615 authorizes official, substantiated adverse information to be furnished to a selection board and that such information be available to all members of the selection board.  This is exactly what the SLD/GOMO provided to the GOFRB as well as to the applicant.

	h.  The applicant cites section 14111, Title 10, USC, which states the name of an officer recommended for promotion by a selection board may be removed from the report of the selection board only by the President.  Here, the applicant was not recommended for promotion.  As his name was not on a promotion list, his name could not have been removed from a promotion selection list.

	i.  The applicant cites section 14311, Title 10, USC, which states under regulations prescribed by the SecDef, the appointment of an officer to a higher grade may be delayed if any of the several reasons applies before the date on which the appointment would otherwise be made.  The applicant was neither appointed to a higher grade nor placed on a promotion list.

	j.  The applicant cites section 14903, Title 10, USC, which states the Secretary of the military department concerned shall convene a board of inquiry at such time and place as the Secretary may prescribe to receive evidence and review the case of any officer who has been required to show cause for retention in an active status under section 14902 of this title.  This section is not related to the applicant.  He was not required to show cause for retention

	k.  As ordered by the SA when he disapproved the May 2010 GOFRB, the applicant may be considered by a future GOFRB.  Since the October 2011 GOFRB has already convened and since there is no special selection board for a GOFRB (it is not a promotion board), the applicant remains eligible for future considerations if otherwise qualified and nominated by the appropriate officials.

7.  Finally, in his rebuttal the applicant contended that the Board should obtain copies of letters with DA GOMO from senior leaders that were intended to be presented to the SA with his letter requesting reconsideration, consider them, and include them with any recommendation presented to the SA.  This is an unreasonable request as the Board is not an investigative agency.  The burden of proof lies with the applicant; not with the Board.

8.  After a comprehensive review of this case the preponderance of the evidence clearly indicates the applicant received the required administrative due process in the actions regarding the GOFRB process.  The evidence also did not support his contention that his misconduct was minor.  Therefore, 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)                                         AR20110014863



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ABCMR Record of Proceedings (cont)                                         AR20110014863



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