IN THE CASE OF:	  

		BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120009484 


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 adjustment of his date of rank (DOR) to brigadier general (BG)/O-7 from 1 July 2011 to 22 December 2010.

2.  He states his promotion to BG was delayed due to a false and anonymous allegation that indicated he had deceived the General Officer Federal Recognition Board (GOFRB) regarding a medically disqualifying condition that was completely false.  He explains that in 2009 he donated one of his kidneys to his son when his son went into renal failure.  Prior to his son's surgery, he states he secured permission from the Surgeon General of the Army to make this organ donation in accordance with Army regulations.  He adds that he provided the supporting documentation to the Department of the Army Investigators and he was cleared of any wrongdoings.

3.  He states his promotion to BG was approved by the GOFRB in June 2009.  He continues by stating all of the officers who appeared before this board were delayed in receiving the promotion for nearly 18 months, until 20 December 2010. He adds his promotion was delayed until July 2011 because of the false allegation.  He states the final Report of Investigation (ROI) was not completed until 17 December 2010 and it required an additional 7 months for his promotion package to be vetted and submitted to the White House and Senate for nomination and confirmation. 

4.  The applicant provides:

* Special Order GO-182-02, issued by the National Guard Bureau (NGB), dated 1 July 2011
* DA Inspector General (DAIG) ROI pertaining to himself, then a colonel (COL)/O-6, dated 17 December 2010
* Memorandum from the Chief, General Officer Management, NGB, subject:  Application for Correction of Military Records – (applicant's name and Social Security Number), dated 6 July 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he was appointed in the Army National Guard (ARNG), Military Police Corps, and he was promoted to COL/O-6 effective 12 April 2006.

2.  The applicant was ordered to active duty in support of Operation Enduring Freedom on 12 February 2011.  The orders show he was assigned as the Commander of the 26th Maneuver Enhancement Brigade (MEB), Massachusetts ARNG (MAARNG).

3.  The DAIG ROI, dated 17 December 2010, states that on 30 March 2010, the agency received an anonymous complaint alleging abuse of power and position, misuse of federal funds, and negligence and favoritism by the applicant.  The complaint also alleged the applicant was not worldwide deployable since he had a kidney removed last year and he never reported his medical condition to military medical officials.  The DAIG found the preponderance of evidence indicated the planning and execution for the conference was adequate and in accordance with existing policies and procedures.  The allegation he misused government resources was not founded.  Additionally, the evidence established he properly disclosed his change in medical condition.  Therefore, the allegations were not substantiated.

4.  Special Order GO-182-02, dated 1 July 2011, shows the applicant was extended Federal recognition and appointed in the rank of BG effective 1 July 2011.  His duty position was listed as Commander, 26th MEB.

5.  In a memorandum, dated 6 July 2012, the Chief, General Officer Management, NGB, explained that the applicant met the GOFRB for a certificate of eligibility (COE) for the rank of BG in June 2009.  He stated officers who possess a COE for BG may be Federally recognized and appointed as a Reserve of the Army in that grade upon assignment to a BG position within
2 years of Senate confirmation for the COE.  The NGB representative stated adverse information was received by the DAIG that resulted in the applicant's nomination being withheld.  The adverse information was favorably resolved and DA forwarded his nomination.  He also stated:

* If the applicant's nomination had not been withheld, he would have been confirmed by the Senate for a COE on 22 December 2010
* He was not assigned to a BG position
* NGB extended Federal recognition and promoted him on 1 July 2011
* MEB Commander billets are authorized as a COL billet when not deployed and as a BG billet when deployed
* He was ordered to active duty as the Commander of the 26th MEB on
12 February 2011
* NGB recommends an adjustment date of rank effective 12 February 2011

6.  During the processing of this case an advisory opinion was obtained from the Personnel Policy Division, NGB.  The advisory official reiterated the information cited above and recommended partial approval of the applicant's request for adjustment of his DOR to BG.  The advisory official stated if the applicant's nomination had not been withheld, he would have been confirmed by the Senate for a COE on 22 December 2010 and promoted to BG.  However, his command position was a COL slot at that time and it was not until the unit was mobilized for active duty on 12 February 2011 that the slot was transformed to a BG slot.  Therefore, if the applicant had been confirmed by the Senate on 22 December 2010, the NGB would have extended Federal recognition and Reserve of the Army appointment as a BG upon his call to active duty on 12 February 2011.

7.  On or about 20 December 2012, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal acknowledgement and/or rebuttal on
20 December 2012.  On 26 December 2012, the applicant concurred with the recommendation.

8.  On 10 June 2012, the applicant was honorably released from active duty.

9.  Army Regulation 135-156 (Reserve Component General Officer Personnel Management) prescribes the policies and procedures for the promotion of Reserve general officers.  It states that all COL's in an active status may be promoted once they are confirmed by the Senate for promotion to BG and assigned to the higher grade billet.

DISCUSSION AND CONCLUSIONS:

1.  The NGB confirmed the applicant met the GOFRB for a COE for the grade of BG in June 2009, but his Senate confirmation was withheld pending the outcome of a DAIG investigation that was favorably resolved.  He was promoted and extended Federal recognition on 1 July 2011.  The NGB stated if the applicant's promotion had not been withheld, he would have been confirmed by the Senate for a COE on 22 December 2010.

2.  However, in accordance with the regulation cited above, all COL's in an active status may be promoted once they are confirmed by the Senate for promotion to BG and assigned to the higher grade billet.  Evidence of record shows the applicant's command position was a COL/O-6 slot at the time and it was not until the unit was mobilized on 12 February 2011 that the slot was transformed to a BG/O-7 position.

3.  In view of the circumstances in this case, the applicant is entitled to an adjustment of his promotion effective date and DOR for BG to 12 February 2011 with entitlement to back pay and allowances.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

	a.  showing he was promoted to BG and granted Federal recognition with an effective date and date of rank of 12 February 2011

	b.  paying him all back pay and allowances due as a result of this correction.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to promotion to BG/O-7 with an effective date and/or date of rank of 22 December 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)                                         AR20120009484



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120009484



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1