IN THE CASE OF:	   

		BOARD DATE:  10 October 2013

		DOCKET NUMBER:  AR20120021462 


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 retired rank to brigadier general (BG)/O-7.  

2.  He states he is asking to receive the recognition he earned as evidenced by his exemplary military record and as further attested by the fact that the U.S. Senate confirmed him as a general officer.  The Adjutant General of the State of Tennessee recommended him for promotion to BG, the Governor of Tennessee nominated him for promotion to BG, and the U.S. Senate confirmed him as an Army National Guard (ARNG) general officer on 19 September 1996.  He was retired prior to being able to secure promotion to O-7.  His retirement occurred 7 and 1/2 months before the expiration of his Certificate of Eligibility, resulting in the curtailment of any action being taken to finalize any possible promotion opportunity.  

3.  The applicant provides:

* self-authored letter
* orders
* message, subject:  Senate Confirmation of ARNG General Officers
* four Officer Evaluation Reports
* memorandum, subject:  Request for Certificate of Eligibility
* correspondence congratulating him on his selection for promotion to BG
* a résumé of his service career
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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.  Having had prior enlisted service in the Regular Army and commissioned service in the Army of the United States, effective 13 July 1974, the applicant was appointed as a captain/O-3 in the Tennessee ARNG (TNARNG).  He was promoted to major/O-4 effective 13 July 1981.

3.  His record indicates he entered active duty in an Active Guard Reserve (AGR) status on 4 April 1983.  He continued to serve in this status through his retirement.

4.  Effective 22 July 1985, he was promoted to lieutenant colonel/O-5.

5.  On 21 December 1989, the ARNG Personnel Center, Alexandria, VA, was notified the applicant had been selected for promotion to colonel (COL)/O-6.  On 21 April 1990, the applicant elected to decline promotion to the next higher grade.  His election was approved by the State of Tennessee.

6.  On 1 March 1993, he voluntarily elected to delay his promotion to COL/O-6.  

7.  Effective 10 September 1993, he was promoted to COL/O-6.  

8.  On 30 March 1994, the TNARNG (State Area Command (STARC)) issued Orders 61-164 transferring him to duty as the Commander, Detachment 1, STARC (Troop Command), effective 1 April 1994.  The orders show the position to which he was transferred was a COL/O-6 vacancy.

9.  On 31 October 1997, the TNARNG (STARC) issued Orders 210-79 releasing him from assignment as the Commander, 80th Troop Command (Detachment 1 STARC), and transferring him to duty as the Director, Logistics Division, Headquarters, TNARNG (STARC), effective 1 November 1997.  The orders show both positions were COL/O-6 vacancies.

10.  On 23 October 1997, the Office of the Adjutant General of Tennessee issued Orders 204-48.  The corrected copy of the orders in his record shows, effective 31 January 1998, the applicant was retired from active service and released from assignment and duty.  The orders placed him on the retired list as a COL/O-6 effective 1 February 1998.  The orders show his retirement was voluntary based on 20 years, 1 month, and 28 days of active service.  The orders also show he had completed 29 years, 7 months, and 5 days of service for the purpose of basic pay. 

11.  His DD Form 214 for the period ending 31 January 1998 shows the authority for his retirement was Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 6-14c(1).  

12.  His record is void of documentation showing he held the rank/grade of 
BG/O-7 or that he served in a duty position requiring the rank/grade of BG/O-7.

13.  He provides:

	a.  A message, subject:  Senate Confirmation of ARNG General Officers, dated 20 September 1996, showing his nomination for promotion to BG/O-7 was confirmed by the U.S. Senate, he was given a Certificate of Eligibility, and his date of rank was to be determined.

	b.  Officer Evaluation Reports for four rating periods spanning the period 1 April 1994 to 15 February 1997 showing he received the highest possible ratings for his service as the Commander, 80th Troop Command.  Each evaluation stated, in effect, that he should be promoted to BG/O-7.  The Officer Evaluation Reports for the periods ending 31 March and 31 July 1995 show his rater was the BG/O-7 Deputy STARC Commander, who was attached to the 80th Troop Command.  The Officer Evaluation Reports for the periods ending 15 February 1996 and 15 February 1997 show his rater was the COL/O-6 (promotable) Deputy STARC Commander, who was also attached to the 80th Troop Command.  His senior rater for each of the evaluations was the Tennessee Adjutant General, a major general (MG)/O-8.

	c.  A memorandum, subject:  Request for Certificate of Eligibility, dated 28 February 1996, showing the Tennessee Adjutant General requested that the Chief, National Guard Bureau (NGB), issue a Certificate of Eligibility for General Officer of the Line to the applicant based on his projected assignment as Assistant Adjutant General, TNARNG.  The memorandum shows the then-current Assistant Adjutant General was to be transferred/reassigned on or about 1 December 1996.  

14.  In his self-authored letter, he states:

* the 80th Troop Command was a "Major Command" that consisted of four separate units and nine battalions or intermediate commands located in 27 different locations with a combined authorized strength of 2,499 Soldiers
* two commands subordinate to the 80th Troop Command were COL/O-6 commands
* he was issued a Certificate of Eligibility [for promotion to BG/O-7] dated 19 September 1996
* while he was commander of the 80th Troop Command, he was senior rated by an MG/O-8 who commented he was fully qualified for promotion to a general officer grade
* his rater was attached to the 80th Troop Command and the rater's sole responsibility was to command the 80th Troop Command on a part-time basis, i.e., during drill weekend, annual training periods, etc.  
* before a promotion could be secured, he was retired on 31 January 1998 because he had attained 20 years of active Federal service as a commissioned officer
* at the time of his retirement, he had 7 and 1/2 months remaining on his Certificate of Eligibility
* he was unaware of any recourse until he read Title 10, U.S. Code, Section 1370 (10 USC 1370) which is the basis for his request
* it is noteworthy that the Tennessee Adjutant General recommended him for promotion, the Governor of Tennessee nominated him for promotion, and the U.S. Senate confirmed him as a general officer
* he served for 3 years and 7 months as commander of a brigade-sized organization which can be authorized a BG/O-7 commander based on the composition of the unit, as further evidenced by the attachment of a 
BG/O-7 part-time commander
* he served his country honorably for over 29 years, he commanded a transportation detachment in Vietnam, and he was awarded the Distinguished Flying Cross for his service in Vietnam
* he was awarded the Army Staff Badge and attained status as a Master Army Aviator
* his other awards include the Legion of Merit
* through no fault of his own, he was denied the opportunity for a well-deserved promotion
* he requests an exception be made to advance him on the retired list to BG/O-7
15.  On 14 August 2013, the Chief, Personnel Policy Division, NGB, provided an advisory opinion recommending disapproval of the applicant's request.  

	a.  The advisory official stated, in part, that in an e-mail, dated 9 April 2013, the TNARNG stated:

* the applicant was never assigned to a BG/O-7 position in the State
* the applicant was serving as an AGR COL/O-6 and retired with 20 years of active Federal service on 31 January 1998
* Tennessee has never acquired authorization for a BG/O-7 AGR position
* the TNARNG determined that the applicant was not promoted to BG/O-7 because a position was not available at the time
	
	b.  The advisory official stated that U.S. Code provides that a commissioned officer will be retired in the highest grade in which he served on active duty satisfactorily for not less than 6 months.

16.  On 21 August 2013, the applicant responded to the advisory opinion.  He stated:

* he does not totally agree with the advisory opinion
* he understands that there was not a BG/O-7 Title 10 AGR position available in Tennessee at the time, and to his knowledge one had never been requested
* there was a Title 32 position available, and he would have gladly delayed his retirement to secure a Title 32 promotion to BG/O-7
* he emphasized the fact that he served for 3 years and 7 months as a commander of a brigade-sized organization, and given the size and composition of the command, a BG/O-7 commander was authorized
* a BG/O-7 was attached to the command and received credit for command time on a part-time basis, which could lead one to the conclusion that the 80th Troop Command was a BG/O-7 command
* based on the advisory opinion, one might conclude he was penalized for being an AGR officer, since it appears he could only be promoted or only wanted to be promoted in a Title 10 status, which is not true
* he contends that he filled a BG/O-7 billet for 3 years and 7 months, during which time he received laudatory Officer Evaluation Reports and held a Certificate of Eligibility for promotion to BG/O-7

He concluded his response by summarizing his achievements during his military career.  He recommended that his request be approved.

17.  Army Regulation 135-18 (The AGR Program) establishes policies and prescribes procedures for obtaining, administering, and separating Army National Guard of the United States (ARNGUS) and United States Army Reserve (USAR) Soldiers serving as members of the AGR Program.  Paragraph 4-9 (Selective Retention) of the version in effect at the time of the applicant's retirement stated all AGR officer personnel were to be released from active duty or full-time National Guard duty (FTNGD) when they had attained 20 years and 1 month of qualifying service for retirement purposes unless they had been approved for voluntary retention.  

18.  Army Regulation 600-8-24 also in effect at the time reiterated the requirement that Reserve Component officers be released from active duty upon completing 20 years of active duty service.  These officers were authorized to request voluntary retirement provided they had 10 years of commissioned service.  

19.  10 USC 1370 states that, unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months.

20.  10 USC 1370 further states that, with regard to Soldiers eligible for non-regular retired pay under chapter 1223, in order to be credited with satisfactory service in an officer grade above major or lieutenant commander, a person must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a Reserve commissioned officer in an active status, or in a retired status on active duty, for not less than 3 years (6 months if transferred from an active status or discharged as a Reserve commissioned officer solely due to the requirements of a nondiscretionary provision of law).  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for adjustment of his retired rank to BG/O-7.  

2.  An officer's grade on the Retired list is determined by the highest grade the officer satisfactorily held for a period specified in law.  There is no regulatory or statutory authority for advancing an officer on the Retired list to a grade that he or she did not actually hold.  

3.  The available evidence indicates the Senate confirmed his nomination to BG and he was projected to fill a BG/O-7 position as the Assistant Adjutant General, TNARNG.  Notwithstanding the fact that he was only nominated for promotion to BG and had been projected to fill a position, the TNARNG has stated that ultimately he was not promoted to BG/O-7 because a position was not available.  

4.  The applicant's various contentions are noted; however, none of those overcomes the fact that he was not promoted to BG/O-7

5.  In view of the foregoing, there is no basis for granting the relief he has requested.  

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)                                         AR20120021462





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120021462



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1