IN THE CASE OF:	  

		BOARD DATE:  18 April 2012

		DOCKET NUMBER:  AR20120000367 


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’s requests, statements and supporting documents are submitted by counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant’s earlier petition to the Board and that the record be corrected as follows:

   a.  a waiver to meet time requirement for promotion consideration;

   b.  placement of a letter in applicant’s personnel record setting forth his accurate performance of duty for the period covered by Officer Evaluation Reports (OERs) previously removed from the record; and 

   c.  promotion to colonel or, consideration by a Stand-By Advisory Board (STAB)/Special Selection Board (SSB) for promotion to colonel.

2.  Counsel states reconsideration should be granted based on the multiple errors and injustices demonstrated in the documentary evidence thus far presented to the ABCMR, both old and new evidence.  He further indicates the applicant reserves his right to request the ABCMR review any further report of the Inspector General submitted under the Military Whistleblower Protection Act.  Additionally, counsel states the applicant and counsel are available for personal appearance before the ABCMR.

3.  Counsel provides a memorandum in support of a request for reconsideration and 85 exhibits identified in the reconsideration exhibit list provided in support of the request.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090017281, on 5 August 2010.  

2.  During the original review of the case, after carefully reviewing the evidence of record and all the evidence submitted by the applicant, the Board recommended the 26 February 1996 Letter of Reprimand the applicant received be removed from his Official Military Personnel File (OMF).  The Deputy Assistant Secretary, Army Review Boards, directed in addition to the relief provided by the Board that the OERs the applicant received for the periods ending on 31 March 1996 and 
1 September 1996 be removed from the applicant’s record and that a non-rated statement be placed in the record in their stead showing an evaluation report was not rendered through no fault of the rated officer (the applicant). 

3.  The Board further found in regard to the applicant’s request for promotion to, or consideration by a STAB/SSB, to colonel that there was no evidence indicating the applicant was eligible for, considered, or selected for promotion to colonel by a Reserve Component Selection Board (RCSB) prior to his transfer to the Retired Reserve.  It further indicated the applicant’s date of rank to lieutenant colonel (LTC) was 19 December 1994, and he was first eligible for promotion consideration to colonel by the 1998 colonel RCSB which convened on 14 July 1998 and adjourned on 14 August 1998, subsequent to his transfer to the Retired Reserve the year before.  As a result, the Board concluded there was an insufficient evidentiary basis to support granting that portion of the requested relief.  

4.  The applicant and counsel now argue the applicant was unjustly forced to retire, and is entitled to the requested relief.  They state the ABCMR’s reference to the Department of the Army Inspector General (DAIG) finding that all the applicant’s allegations were unsubstantiated refers to a DAIG Addendum report of investigation (ROI) dated 30 December 1999 which reversed an earlier DAIG substantiation of reprisal in its original ROI.  The 1999 DAIG ROI is not pertinent for two reasons:

   a.  The 1999 DAIG ROI appears to bear a forged signature of the Army Vice Chief of Staff (VCS) which apparent forgery is currently being reviewed by the Department of Defense Inspector General (DODIG).  In a 14 December 2011 electronic mail (e-mail) the Army VCS in question disclaims the signature on the Addendum ROI in question. 

   b.  The 1999 ROI Addendum is not pertinent because the applicant was never provided an opportunity to respond, neither when he was notified of its results in the Spring of 2000 nor during the course of the ABCMR proceedings.  The ABCMR decision presumed the applicant received a copy.  The applicant confirms he never received a readable copy of the ROI in question until it was provided by the ABCMR after its 2010 decision.

5.  Counsel and the applicant state in regard to his promotion to colonel, they are providing four affirmations by senior New York Army National Guard (NYARNG) officers, including two former Adjutants General, providing new evidence of the improper procedures through which the applicant’s position was downgraded and prevented him from being eligible, considered, or selected for promotion to colonel by an RCSB.  They claim the fact he was never considered is in itself an injustice.  

6.  Counsel and the applicant claim, in regard to the ABCMR determination the applicant voluntarily transferred to the Retired Reserve, the same four affirmations from senior NYARNG officers mentioned above provide new evidence this transfer was not voluntary.  They substantiate multiple errors or injustices in connection with the manner in which the applicant’s position was downgraded, thereby supporting relief in the form of reinstatement in an active Reserve status in order to be considered for promotion to colonel by a STAB/SSB.  

7.  The applicant’s records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 5 June 1971.  He entered active duty on 
1 February 1972, and served in that status until 24 October 1982, at which time he was honorably discharged, in the rank of captain/O-3.  

8.  On 25 October 1982, he was appointed as a CPT/O-3 in the USAR on 7 June 1985, and appointed and granted Federal recognition in the NYARNG on 
31 October 1985.  On 13 August 1987, he was promoted to major/O-4 and on
19 December 1994, he was promoted to LTC/O-5.  

9.  On 16 November 1997, the applicant was advised that he was required to be reassigned based on the inactivation or reorganization of his unit.   He was informed that he had the following options:

   a.  a valid assignment in another ARNG unit;
   b.  If not offered a valid assignment, he could request;
   
        (1)  transfer to the Retired Reserve with entitlement to Special Separation Pay (an annual payment for a period of up to 5 years; it does not reduce his retired pay at age 60); or
   
        (2)  transfer to the USAR Individual Ready Reserve (IRR); and

	c.  on a case-by-case basis, assignment to another unit in an overstrength status for a period of 1 year.

10.  On 23 November 1997, he certified that he had completed at least
20 qualifying years for non-regular retirement and voluntarily elected a transfer to
the Retired Reserve with entitlement to Special Separation Pay.

11.  On 1 December 1997, the applicant was discharged from the NYARNG and transferred to the USAR Retired Reserve.  

12.  The 1998 RCSB convened on 14 July 1998 and adjourned on 14 August 1998. The “First Time Considered” zone of consideration was those LTCs with a date of rank from 2 January 1994 through 1 January 1995.  This board was approved on 14 December 1998.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers (WO) other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned WOs) of the ARNG of the United States (ARNGUS) and of commissioned and WOs of the USAR:

	a.  Paragraph 2-5 provides eligibility criteria for promotion consideration.  It states to be eligible for promotion consideration to the next higher grade, an ARNGUS or USAR officer must have continuously performed service on either the Reserve Active Status List (RASL) or Active Duty List (ADL), or a combination of both lists, during the 1-year period ending on the convening date of the promotion board; 

	b.  Paragraph 2-11 provides guidance for consideration for promotion to colonel and states only qualified officers of the ARNGUS and USAR who are in an active status will be considered;  

   c.  Chapter 3, Section III (Promotion Reconsideration Boards) provides guidance on reconsideration for promotion by either a promotion advisory board or an SSB for officers and WOs who have either failed selection for promotion, or who were erroneously not considered for promotion through administrative error.  These boards are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose record, through error were not submitted to a mandatory promotion selection board for consideration, or whose records contained a material error when reviewed by the mandatory selection board; and 

   d.  Paragraph 4-10 provides guidance on promotions requiring Senate confirmation.  It states officers selected for promotion to colonel require Senate confirmation.

14.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports which includes the OER and contains the policies regarding redress programs, including Commander Inquiries and appeals.  

15.  Army Regulation 623-3, paragraph 6-9 provides guidance on processing and resolution of appeals.  It states, in pertinent part, that in the case of an invalidated report, a memorandum will be placed in the performance portion of the Official Military Personnel File (OMPF) declaring the period as nonrated time.  There are no provisions for providing a new report or correspondence providing a substituted evaluation by any appellate authority.  

16.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for reconsideration and the new evidence and argument presented has been carefully considered.  However, there remains an insufficient evidentiary basis to support granting the requested relief even if, for the sake of argument, the applicant’s allegations about the DAIG remained substantiated as indicated in the original ROI. 

2.  By regulation, in order to be eligible for consideration for promotion to colonel, a member must be on the RASL or ADL, or a combination of both lists, during the 1-year period ending on the convening date of the promotion board; and must meet the time in grade requirements established by the Secretary of the Army.  

3.  The evidence of record confirms the applicant transferred to the Retired Reserve in 1997, prior to becoming eligible for consideration for promotion to colonel by the 1998 RCSB, the first promotion for which he would have been eligible for consideration for promotion to colonel.  

4.  Notwithstanding the argument of the applicant and his counsel that the command climate and actions taken by the senior leaders of the NYARG in effect made his retirement involuntary, the applicant retained the option to remain in the USAR in an active status by either transferring to the IRR or a Troop Program Unit (TPU) at the time he left the NYARNG.  As a result, given he had options to stay on the RASL in order to compete for promotion without remaining in the NYARNG and subjecting himself to this adverse command climate, his transfer to the Retired Reserve was in fact a voluntary action.  As a result, there is an insufficient basis to support granting him the relief requested related to a waiver of time in grade, consideration for promotion to colonel by a STAB/SSB, or promotion to colonel. 

5.  The request of the applicant and counsel to place a letter in applicant’s personnel record setting forth his accurate performance of duty for the period covered by OERs previously removed from the record has also been carefully considered.  However, by regulation, the appropriate method to correct the record for OERs that are removed from the record is to place a memorandum in the performance portion of the OMPF declaring the period as nonrated time.  While the Board arguably could exercise its broad equity powers and fashion a substantive OER, it is not necessary to go beyond the usual remedy called for by the applicable regulation in this case.  Relief that would purport to create a substantive rating 15 years after the fact based on the recollections of personnel sympathetic to the applicant would be no more fair, accurate, or unbiased a record of his performance than the removed OER.  

6.  Additionally, while it is recognized that the applicant was subjected to a number of injustices, it is also clear that he failed to mitigate the impact those injustices had on his career.  Rather than remain on the RASL, whether in the IRR or a TPU slot, he chose to end his military career.  Nothing and no one, not even the rater and senior rater of whom he complains, prevented him from remaining on the RASL, pursuing other positions, serving, and ultimately competing for promotion.  

7.  The applicant’s choice to retire in 1997 limited his ability to recover on his own through his continued efforts and service.  His choice to retire coupled with his decade-long delay in applying to the Board similarly limits his entitlement to relief.  Under the doctrine of laches “equity aids the vigilant and not those who slumber.”  The applicant’s request that he be promoted based on service he never performed and to receive retired pay at a rank he never held simply goes too far and would now essentially result in a windfall. 

8.  The applicant’s request for a personal appearance has been noted.  However, based upon the facts of the case such an appearance is not necessary.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20090017281, dated 5 August 2010.  



      _________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)                                         AR20120000367



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000367



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1