IN THE CASE OF:	  

		BOARD DATE:	    17 December 2013

		DOCKET NUMBER:  AR20130010393 


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 correction of his military records by adjusting his promotion dates for brigadier general (BG) to on or about 30 July 2009 and for major general (MG) to on or about 7 August 2011.  He further requests to receive all associated pay and allowances as a result of this correction.

2.  The applicant states that delays exceeded the average processing times.  The General Officer Federal Recognition Board (GOFRB) convened in the Fall; however, his promotion to BG was not effective until December 2010.  The board delay was due to allegations of impropriety made against certain officers.  He contends that he was never the subject of any allegations or adverse action.  Secondly, he was non-selected for promotion to MG by the Fiscal Year (FY) 2012 Special GOFRB due to a lack of Officer Evaluation Reports (OERs), which are not required for The Adjutant Generals (TAGs).  At the time the boards convened he had served as TAG for 3 1/2 years.  Furthermore, the Governor's recommendation had been removed from the packet and he was not seen by the board.

3.  The applicant provides copies of:

* A Timeline from 3 December 2008 to 23 May 2013
* Special Orders Number 120 AR, National Guard Bureau (NGB),          dated 20 June 1997
* Orders c-06-811854, U.S. Army Human Resources Command (HRC), dated 19 June 2008
* Order 172-060, Fifth Regiment Armory, dated 20 June 2008
* Letter, Office of the Governor, State of Maryland, dated 7 August 2008
* Information Paper, Subject: "Fall 08 GO Federal Recognition Board," dated 28 April 2010
* Special Order GO-356-10, NGB, dated 22 December 2010
* Permanent Order 004-003, State of Maryland, dated 4 January 2011
* Slide Briefing, GO Process, NGB Senior Leadership Conference, dated 
2 March 2011
* Letters, Office of the Governor, State of Maryland, dated 2 November 2011, 22 August 2012, and 28 August 2012
* Letter, Secretary of the Army (SA), dated 18 October 2012
* Special Order GO-144-01, NGB, dated 24 May 2013
* Chart, Army National Guard GOFRB Dates for 2008-2012

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.  At the time of his application, the applicant was serving as TAG for the State of Maryland.

3.  Special Orders Number 120 AR, NGB, dated 20 June 1997, announced the transfer of the applicant to the U.S. Army Reserve (USAR) Control Group (Retired Reserve), in the rank of colonel, pay grade O-6, effective 31 July 1997.  He was apparently transferred out of the Retired Reserve to the USAR Control Group (Reinforcement) on an unknown date.

4.  Orders C-06-811854, HRC, dated 19 June 2008, announced the release of the applicant from the USAR Control Group (Reinforcement) in the rank of colonel, pay grade O-6, and subsequent appointment in the Maryland Army National Guard (MDARNG), effective 19 June 2008, with a Reserve date of rank of 1 September 1996.


5.  Order 172-060, Fifth Regiment Armory, dated 20 June 2008, announced the appointment of the applicant as a BG in the ARNG effective 19 June 2008.

6.  In a letter dated 7 August 2008 the Governor of Maryland recommended the applicant for a Certificate of Eligibility in the ARNG and Nomination for Federal recognition in the rank of BG.  The governor stated in this letter that the applicant was without reservation the best qualified officer in the MDARNG for the position of TAG.

7.  An Information Paper, dated 28 April 2010, provided by the applicant, presents the following sequence of events concerning his GOFRB:

* 3 December 2008:  the GOFRB convened
* 23 February 2009:  SA approved the GOFRB report
* between March and July 2009:  GOFRB package returned and delayed several times for removal of multiple officers with Inspector General (IG) hits
* 11 August 2009:  GOFRB package delayed at the Office of the Secretary of Defense (OSD) due to reportable information on an officer's involvement in Abu Ghraib
* 22 September 2009:  Department of the Army (DA) GO Management Office (GOMO) requested package be returned for removal of the officer with the reportable information
* 13 November 2009:  GOFRB package was signed by the SA and sent to OSD
* 7 December 2009:  GOFRB package was placed on hold at OSD due to additional IG issues
* 15 December 2009:  OSD received scroll and text file
* 6 January 2010:  Secretary of Defense signed GOFRB package
* 7 January 2010:  DA GOMO notified NGB GOMO the GOFRB package was on its way to the White House
* 7 January 2010:  NGB-GOMO requested to review the scroll and found an officer on the list who should have been removed
* 8 January 2010:  DA GOMO pulled the GOFRB package to remove the identified officer
* 22 February 2010:  OSD received the GOFRB package
* 30 March 2010:  OSD held all board packages and requested historical data about joint qualification and eligible nominee assignments (This was a new requirement)
* 9 April 2010:  OSD notified DA GOMO of a retired officer on the list and returned the package
* 23 April 2010: DA GOMO sent the GOFRB package to SA for signature
* the package was then returned to OSD
* 28 April 2010:  OSD estimated a 2-3 month timeline for Senate confirmation
* May 2010:  DA GOMO pulled GOFRB package to remove another officer due to IG issues
* the package was again signed by the SA and returned to OSD

8.  Special Order GO-356-10, NGB, dated 22 December 2010, announced by order of the SA and by direction of the President, the applicant's extension of Federal recognition as an ARNG of the United States and as a Reserve of the Army, in the rank of BG effective 22 December 2010.

9.  Permanent Order 004-003, State of Maryland, dated 4 January 2011, announced the applicant's promotion to MG effective 22 December 2010.

10.  In a letter, dated 2 November 2011, the Governor of Maryland recommended the applicant for a Certificate of Eligibility in the ARNG and nomination for Federal recognition in the rank of MG.  The governor stated in this letter that the applicant was, without reservation, qualified for promotion to MG.  The applicant clearly demonstrated the competence, tenacity, and visionary foresight to continue his duties as TAG and to lead the MDARNG into the future.

11.  In a letter, dated 22 August 2012, the Governor of Maryland again recommended the applicant for a Certificate of Eligibility in the ARNG and nomination for Federal recognition in the rank of MG.  The governor stated in this letter that the applicant was without reservation qualified for promotion to MG.  He had diligently served in the capacity as TAG for the previous 4 years.  The applicant clearly demonstrated the competence, tenacity, and visionary foresight to continue his duties as TAG and to lead the MDARNG into the future.  The Governor included a 2-page addendum wherein he discussed the applicant's accomplishments as TAG since his appointment in 2008.

12.  On 28 August 2012, the Governor of Maryland wrote a letter to the SA wherein he shared his observations and experiences regarding the promotion process for a State TAG within the DA.  He provided the specifics of the applicant's appointment and subsequent delays that occurred with his promotion to BG.  The Governor also stated his understanding that the DA had removed his letter of recommendation from the package for MG resulting in the board having insufficient documentation to warrant the applicant's promotion to MG.  He was later informed the DA had taken corrective action to ensure that such letters from State Governors are not removed.  The governor was also informed that he had to resubmit his recommendation for the applicant to be considered in October 2012 for Federal recognition as a MG.
13.  On 18 October 2012, the SA responded to the letter from the Governor of Maryland, wherein he stated that he fully understood the concerns about the process.  The SA acknowledged the excessive period of time the December 2008 GOFRB took due to recurring allegations of impropriety made against certain officers who were recommended for Federal recognition.  The SA further stated that in October 2012 GOFRBs would include an ARNG general officer, usually a State TAG, who would serve as a voting member.

14.  Special Order GO-144-01, NGB, dated 24 May 2013, announced by order of the SA and by direction of the President, the applicant's extension of Federal recognition as an ARNG of the United States and as a Reserve of the Army, in the rank of MG effective 24 May 2013.

15.  In the processing of this case, an advisory opinion was obtained from the Chief, GOMO, DA, Office of the Chief of Staff, wherein the following comments and recommendations were offered:

	a.  The applicant's nomination for appointment as BG was processed as part of the December 2008 ARNG GOFRB.  His nomination, along with those of the other officers recommended for appointment by the same board, was transmitted to the Senate by the President on 17 November 2010 and was confirmed by the Senate on 22 December 2010.

	b.  There is no prescribed timeline for nomination processing that would serve as a potential basis for adjusting the applicant's date of promotion to BG.  Any effort to retroactively adjust the timeline would usurp the President's authority to make such nominations and the Senate's authority to confirm such nominations.

	c.  The informational slide briefing, as provided by the applicant, concerning the processing of GOFRB's do not constitute policy and would not serve as a potential basis for adjusting his promotion date.

	d.  Based on the review of documents pertaining to the nomination for BG, administrative action is not warranted.

	e.  Regarding the applicant's subsequent nomination to MG, the advisory opinion stated that the administrative error caused by removing the governor's recommendation may be a basis for adjusting his promotion date for MG.

	f.  Had the recommendation not been removed, and if it had resulted in a favorable board decision, he would have been confirmed by the Senate on 
22 September 2012.

	g.  The advisory opinion did not opine whether the governor's endorsement would have altered the board's recommendation.

16.  On 16 September 2013, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  On 2 October 2013, the applicant responded with the following comments:

	a.  He stated that he was assigned to the 2-star position as TAG in June 2008.  Due to no fault of his own, it took more than 4 years and 11 months to promote him to the rank of MG.  Even taking into consideration the required minimum time in grade for promotion from BG to MG the excessive time caused by procedural errors cannot be considered justified.

	b.  He contended that at least one person who was separated from the subject GOFRB was cleared of allegations and was promoted at least 6 months ahead of those individuals who remained on the list.

	c.  He stated that the President and the Senate did their part in a timely manner for both his BG and MG promotions.  He does not understand how any correction to the promotion dates is a usurpation of their authority.  He contends that there is essentially no difference in the errors between the two GOFRBs and should both be corrected as he has requested.

17.  Title 10, U.S. Code, section 1552(a)(1), allows the Secretary of a military department to correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or restore an injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military records should be corrected by adjusting his promotion dates for BG to on or about 30 July 2009 and to MG to on or about 7 August 2011.  He further requests all of the associated pay and allowances as a result of this correction.  He bases his request on processing errors and an excessive period of time to complete the process.

2.  The evidence shows the applicant was nominated for appointment as a BG in 2008 and that it went before the December 2008 GOFRB.  However, due to numerous errors and IG issues, the package was not finalized and sent to the President and Senate until November 2010.  He was ultimately confirmed by the Senate on 22 December 2010.

3.  The evidence also shows the applicant was nominated for appointment as a MG in 2012.  However, he was not selected by the January 2012 GOFRB, which was perhaps due to the governor's recommendation being removed in error and not seen by the board.  He was selected by a subsequent board effective 24 May 2013.

4.  The advisory opinion clearly states there is no prescribed timeline for processing these types of nominations.  Furthermore, any effort made to retroactively adjust the actual timeline for either of the applicant's nominations would be a usurpation of both the President's and Senate's authority.

5.  The ABCMR may only correct Army records.  The Board has no authority to correct records created by other Services, Department of Defense, Office of the President of the United States, or the United States Senate.  Promotions to general officer require the President to make the nominations to the U.S. Senate and the Senate confirms those nominations.

6.  Any correction by the ABCMR must comply with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Typically, the ABCMR achieves this by changing an operative fact in the record and thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, or higher office, the Board's authority is limited.

7.  Consequently, based on the authorities cited above, any correction to the applicant's promotion to BG or MG would go beyond the authority of this Board.

8.  In view of the above, the applicant's request should be denied.

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)                                         AR20130010393



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ABCMR Record of Proceedings (cont)                                         AR20130010393



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