BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20110016564 


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:

The applicant defers his request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests:

* the applicant be promoted to colonel (COL) in the California Army National Guard (CAARNG) in the position he would have been absent the discrimination due to his race and national origin
* payment of all back pay for the time he was unable to serve at the appropriate level
* removal from his records of all negative reviews that were a result of the racism of his senior rater
* removal from his records of all documents related to being passed over for promotion
* amendment of any relevant documents to eliminate the negative, race-motivated comments
* any additional relief the Board deems appropriate

2.  Counsel introduces the applicant's educational, academic, and military achievements.  He describes him as an outstanding performer with multiple combat tours and decorations and refers to multiple evaluation reports that rated him as the best at his job and strongly recommended for promotion.  Counsel then describes him as the most senior chaplain, the most deployed chaplain, and the most licensed and/or credentialed or qualified chaplain.  Counsel adds that the applicant was subjected to harassment and disparate treatment and he was placed under the control of a subordinate chaplain.  The harassment and racial discrimination prevented his promotion to COL in favor of a junior officer.  Counsel essentially argues that the applicant's rights were violated under Title VII of the Civil Rights Act of 1964, under the Constitution, and under military regulations.  He concludes that the lack of specific documents or evidence to prove the inner thoughts or motivation of others does not change the truth of the matter and one can easily infer the cause of discrimination. 

3.  The applicant provides:

* Applicant's college transcript
* Certificate of ordination
* DA Form 2-1 (Personnel Qualification Record)
* DA Forms 1059 (Service School Academic Evaluation Report)
* Multiple DA Forms 67-9 (Officer Evaluation Report)
* Multiple DA Forms 67-8 (U.S. Army Officer Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer in the rank of first lieutenant and executed an oath of office on 20 March 1988.  He completed the Chaplain Officer Advanced Course, Phases 1 and 2, in 1991 and 1992 respectively.

2.  On 6 June 1994, he received a Certificate of Ecclesiastical Endorsement and on 27 January 1995, he was appointed as a captain in the CAARNG.  He executed an oath of office on the same date.

3.  He served in a variety of staff assignments and he was promoted to major on 17 April 1998.  He entered active duty on 27 October 2004 and subsequently served in Kuwait/Iraq from January to December 2005.  He was promoted to lieutenant colonel (LTC) in the ARNG on 26 April 2005.  

4.  He entered active duty on 20 April 2006 and subsequently served in Kuwait/Iraq from July 2006 to July 2007.  He was honorably released from active duty to the control of his State on 2 August 2007.  He also entered active duty on 1 November 2007 and he was honorably released from active duty to the control of his State on 30 June 2008.  

5.  On 21 March 2009, the CAARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  

6.  On 15 May 2010, the CAARNG notified him that he was considered by the 2010 Officer Selective Retention Board and that he was recommended for retention in the ARNG. 

7.  He entered active duty on 28 November 2010 and subsequently served in Kuwait/Iraq from October 2010 to November 2011.  He was honorably released from active duty to control of his State on 23 February 2012. 

8.  He was assigned as follows:

* October 2004 to September 2005, Chaplain, 150th Engineer Battalion, Iraq
* October 2005 to October 2006, Chaplain, Camp Roberts Maneuver Training Center, CA
* October 2006 to July 2007, Garrison Chaplain, 169th Fire Brigade, Iraq
* November 2007 to June 2008, Task Force Command Chaplain, Joint Task Force Vista, Joint Force Headquarters, CAARNG
* July 2008 to June 2011, Brigade Chaplain, 40th Combat Aviation Brigade, Fresno, CA

9.  He received multiple OERs over the years that rated him as follows:

* 1 October 2003 through 30 September 2004; Satisfactory Performance – Promote; Best Qualified/Center of Mass
* 1 October 2005 through 22 April 2006; Satisfactory Performance – Promote; Best Qualified/Center of Mass
* 23 April 2006 through 30 September 2006; Satisfactory Performance – Promote; Best Qualified/Center of Mass
* 1 October 2006 through 23 April 2007; Outstanding Performance – Must Promote; Best Qualified/Center of Mass
* 24 April 2007 through 6 July 2007; Satisfactory Performance – Promote; Best Qualified/Center of Mass
* 1 November 2007 through 30 June 2008; Satisfactory Performance – Promote; Fully Qualified/Center of Mass
* 1 July 2008 through 30 June 2009; Outstanding Performance – Must Promote; Best Qualified/Center of Mass
* 1 July 2009 through 30 June 2010; Outstanding Performance – Must Promote; Best Qualified/Center of Mass
* 1 July 2010 through 30 June 2011; Outstanding Performance – Must Promote; Best Qualified/Center of Mass

10.  The applicant's Army Military Human Resource Record (AMHRR), formerly known as the official military personnel file, does not contain:
* any negative information
* non-selection for promotion memoranda
* any other derogatory information

11.  An advisory opinion was obtained on 17 September 2012 from the National Guard Bureau (NGB) in the processing of this case.  An NGB official recommended the applicant's request be returned without action because the applicant did not provide sufficient evidence in support of his contention.  Additionally, the circumstances relating to his request suggest he should have submitted an Equal Opportunity (EO) complaint at the State level to address his concerns.  The official added:

	a. After a thorough review of the supporting documentation and officer evaluation reports submitted by the applicant, it appears he was consistently rated as a "Center of mass" officer and not as the stellar officer that counsel describes.  National Guard Regulation (NGR) 600-100 (Commissioned Officers, Federal Recognition and Related Personnel Actions), paragraph 8-1 states "promotion of officers in the ARNG is a function of the State."  Even though a position may have become available, per the guidance referenced above, it is the State's prerogative to fill the position with the best qualified person.

	b.  The NGB recommends that if the applicant can provide more specific information that could substantiate a complaint of personal discrimination, he should be encouraged to pursue resolution through a formal EO complaint.  Discrimination complaints involving military service or military membership in the ARNG must be filed in accordance with NGR 600-22 (National Guard Military Discrimination Complaint System).  

12.  The applicant did not concur with the advisory opinion and his counsel submitted a rebuttal on 9 October 2012.  He stated:

* The Board should disregard the woefully misguided advisory opinion
* The opinion does not provide a compelling support for its position that the applicant is required to file an EO complaint; this is an unjust promotion passover issue
* Even if the applicant was required to file such a complaint, he is outside the 180-day window required by the regulation
* He became aware of his promotion passover in January 2011; it would be futile to file an EO complaint now
* The applicant provided detailed and compelling evidence of injustice perpetrated by his senior rater who put him on a non-promotable path because of race and accent
* The applicant emailed his chain of command but they did nothing to rectify the injustice
* The statement of "insufficient evidence" stated in the advisory opinion is not permissible grounds to return the application without consideration

13.  NGR(AR) 600-22 establishes EO policies and procedures for filing, processing, investigation, settling, and adjudicating military discrimination complaints in the Army and Air National Guard, prohibiting discrimination based on race, color, religion, gender (to include sexual harassment), national origin, and reprisal for having participated in a protected equal opportunity activity.

14.  NGR 600-100 provides procedures for processing applications for Federal recognition and related personnel actions.  Chapter 8 provides for promotion of officers other than general officers.

	a.  Paragraph 8-1 states promotion in the ARNG is a function of the State.  As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must have satisfied the requirement for promotion.

	b.  Paragraph 8-7 states to be considered for Federal recognition and subsequent Reserve of the Army promotion following State promotion to fill a unit vacancy, an officer must be in an active status, be medically fit, meet the height and weight standards, have completed the minimum years of promotion service, have completed the minimum civilian and military education, and have passed the physical fitness test.

	c.  Paragraph 8-8 states a commissioned officer must complete the minimum years of service prior to being considered for promotion and Federal recognition in the higher grade.  The minimum number of years in the lower grade for promotion from LTC to COL is 3 years.

	d.  Paragraph 8-14 states ARNG officers will be mandatorily considered for promotion as a Reserve commissioned officer of the Army when they meet minimum promotion service requirements prescribed for the zone of consideration.  The provisions of Army Regulation 135-155 (Promotion of Commissioned Officer and Warrant Officers Other Than General Officers) apply.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, through counsel, that he was denied deserved promotion due to his race and ethnicity.  He argues that he was not promoted to COL because he was overlooked in favor of a junior officer and due to discrimination.  

2.  Aside from counsel’s arguing statement, none of the applicant's contentions are supported by evidence.  For example, he contends he was discriminated against.  Yet, he does not provide any documentary evidence of specific incidents substantiated through an EO complaint or an Inspector General inquiry or investigation.  Another example, he contends he informed his higher chain of command of the issue but they did nothing to rectify the situation.  Yet, he does not provide evidence, in the form of an email, memorandum, telephone conversation, of such contention or evidence his higher chain of command did nothing to resolve his issue.

3.  Notwithstanding the applicant's academic achievements, multiple deployments, and/or overall successful performance, promotion in the ARNG is a function of the State.  

	a.  The promotion of an ARNG officer is accomplished by the State or the Territory to which the officer is assigned.  The Federal recognition of that promotion is facilitated by one of two specific board proceedings.  Those proceedings determine the suitability of the ARNG officer for Federal recognition at the higher rank.  A positive finding by a board is required before Federal recognition at the higher rank can be extended.  

	b.  Those board may be convened either at the State level  - in connection with a unit vacancy (now called position vacancy) promotion when an officer is being considered to fill a vacancy (before the officer approaches maximum time in grade) or at the U.S. Army Human Resources Command level (when a group of officers approaches their maximum time in grade).  

4.  There are no negative reviews, derogatory information, negative and/or race-motivated comments, or promotion passover memoranda in his AMHRR.  The Board cannot remove documents that do not exist.  

5.  After a comprehensive review of this case, there is insufficient evidence in the applicant's records and/or provides by the applicant or his counsel to support any of the issues he raised in his application.  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)                                         AR20110016564



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ABCMR Record of Proceedings (cont)                                         AR20110016564



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