RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            28 March 2006
      DOCKET NUMBER:   AR20050003128


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Larry J. Olson                |     |Member               |
|     |Mr. Ronald D. Gant                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be placed on the Retired
List in the rank and pay grade of Major General/0-8 (MG/0-8).

2.  The applicant states, in effect, that the Army failed to adhere to
statutory guidelines contained in Title 10 of the United States Code,
Section 14311
(10 USC 14311) relative to delaying his promotion.  He claims this breach
of law resulted in his retirement in the Federal rank of Colonel (COL).  He
further contends that had the law been adhered to, he would have received
his promotion to MG/0-8 and would have retired in that rank and pay grade.


3.  The applicant provides the following documents in support of his
application:  Extracts of Chapter 11 and Chapter 12, National Guard
Regulation (NGR)
600-100; Extract of 10 USC 14311; Defense Counsel Letter to Member of
Congress, dated 29 June 1998; National Guard Bureau (NGB) Letter to Member
of Congress, dated 13 May 1999; Defense Counsel Letter to Army Vice Chief
of Staff, dated 14 December 2000; and Self-Authored Letter to Board, dated
15 September 2005.  The applicant indicates that other documents related to
his State nomination were included with his application; however, these
documents were not with the application when it arrived at the Board for
processing.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that while he was serving as the Adjutant
General of the Massachusetts National Guard (MANG), an Inspector General
(IG) Report of Investigation (ROI) substantiated that he had issued a
colonel of the MANG a letter of reprimand and adverse officer evaluation
report in reprisal for whistleblowing.  The ROI recommended the Secretary
of the Army take appropriate action.

2.  In connection with the processing of this case, an advisory opinion was
obtained from the Chief of the Department of the Army (DA) GOMO.  This
official indicates that a careful review of the documents pertaining to the
Federal recognition of the applicant was completed.  This review failed to
reveal any procedural or substantive errors associated with the retirement
of the applicant, and in their view, he fails to submit sufficient relevant
evidence to demonstrate a probable error or injustice.

3.  The Chief, GOMO further states that the applicant was considered and
recommended for Federal recognition in the grade of Brigadier General (BG),
and his nomination was initially forwarded to the Secretary of the Army for
Federal recognition.
4.  The Chief, GOMO further states that the applicant’s nomination for
Federal recognition was subsequently withheld by the Secretary of the Army
due to adverse information ascribed to the applicant.  As a result, the
applicant’s nomination was never signed by the President or forwarded for
Senate confirmation.  Ultimately, there were eight substantiated
allegations ascribed to the applicant, and the Vice Chief of Staff of the
Army issued the applicant, who had since retired, a General Officer
Memorandum of Reprimand (GOMOR), and directed it be filed in the
applicant’s Official Military Personnel File (OMPF).

5.  On 15 September 2005, the applicant provided a rebuttal to the GOMO
advisory opinion.  He states that the advisory opinion is ambiguous and
fails to accurately reflect the circumstances that resulted in his
application to the Board.  He claims the United States Code timeliness
requirements for involuntary removal were never adhered to, and the
suggestion there were not procedural or substantive errors associated with
his retirement fails to address the issue.  He further states that as
recently as 1999, a NGB official raised questions regarding the law and its
effect on his promotion.  He further states that it should be noted that
this matter was referred to the OTJAG for a determination on the
applicability of the law, but to date there has been no response.  He also
claims he responded to each of the allegations that were the basis for the
GOMOR issued by The Vice Chief of Staff of the Army, and that none of these
would have warranted his removal from the promotion list.  He claims to
have all the information related to what he went through during the Senate
confirmation process, and he provides an Army IG letter and two letters
from his legal assistance attorney, which he claims could be helpful to the
Board.

6.  The applicant further states that it is of great importance that the
Board recognize the actions of a few malcontents, one of whom sought out
the position of Adjutant General (AG) and not being successful, he levied
allegation after allegation in order to get the applicant.  He also
indicates there is a memorandum at the Headquarters of the MANG’s IG office
from the Army IG attesting to the fact that a retired general officer (GO)
in the MANG and two COLs mounted a campaign against him.  In that
memorandum, the IG recommended the NGB conduct an investigation into the
actions of two COLs and that the Army IG officer would look into the
actions of the GO.  He states that he is unaware of any action taken by the
NGB on this matter.  He finally questions the advisory opinion comment that
the Secretary of the Army withheld his nomination.  He claims he knew
nothing of this action, but can only state that there was a violation of
the applicable United States Code in that he was never notified in writing
of any action taken by The Secretary of the Army.

7.  NGR 600-100 (Commissioned Officer- Federal recognition and Related
Personnel Actions) contains the policy for Federal Recognition of ARNG
officers. Chapter 11 contains guidance on the Federal recognition of GOs.
Paragraph
11-11 states, in pertinent part, that Federal recognition will be extended
by the Chief, National Guard Bureau to those GOs found qualified by a board
and approved by The Secretary of the Army.

8.  10 USC 14311 in effect, provides the legal authority for an involuntary
delay of an appointment when an officer is under investigation, or if there
is cause to believe the officer is mentally, physically, morally or
professionally unqualified to perform the duties of the higher grade.  It
further stipulates that the appointment of an officer to a higher grade may
not be delayed unless the officer is given written notice of the grounds
for the delay.  However, this is not applicable when it is impracticable to
give the officer written notice before the date on which the appointment to
the higher grade would otherwise take effect, but in such a case the
written notice shall be given as soon as practicable.  It further provides
guidance on the maximum length of delay in promotion authorized.  It
states, in pertinent part, that an appointment may not be delayed for more
than six months after the date on which the officer would otherwise have
been promoted unless the Secretary concerned specifies a further period of
delay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be placed on the Retired List
in the rank and pay grade of MG/0-8 because the Army failed to adhere to
applicable statutory guidelines in delaying his appointment, and the
supporting documentation he provided were carefully considered.  However,
there is an insufficient evidentiary basis to support granting the
requested relief.

2.  The available records do not include the applicant's Federal
recognition packet, and/or documents related to the delay in his
appointment.  As a result, an informed judgment regarding the applicant’s
allegation that he did not receive proper notification of the delay in
appointment could not be made.  Therefore, Government regularity in the
processing of the delay in his appointment is presumed.

3.  Further, even if the administrative notification requirement was not
met, it appears clear the applicant’s Federal recognition was delayed by
The Secretary of the Army for cause, as evidenced by the GOMO advisory
opinion.  The governing law and regulation do invest the authority to delay
appointment beyond the normal limitations with the Secretary concerned, in
this case The Secretary of the Army.

4.  The GOMO advisory opinion further confirms that ultimately eight
substantiated allegations were ascribed to the applicant, and as a result
he received a GOMOR from the Vice Chief of Staff of the Army.  Therefore,
it appears the denial of his Federal recognition by The Secretary of the
Army was warranted.  Despite the procedural requirements set forth in 10
USC 14311, Congress clearly did not intend that an officer deemed
unqualified to perform the duties of a higher rank would be promoted.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BJE  _  __LJO __  __RDG__  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.




            ____Barbara J. Ellis________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003128                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/03/28                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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