2.  The applicant requests that he either be reinstated to active duty in the Active Guard and Reserve (AGR) program or that he be given a 15 year retirement.

3.  The applicant states that a Meritorious Service Medal (MSM) was omitted from his file when it was reviewed by the 1993 AGR Continuation Board, and a “flag” (suspension of favorable personnel actions) which had been closed favorably, and should have been removed from his records, was contained in his military records.  Those errors in his records, along with the illegal utilization of continuation boards to reduce the AGR force, resulted in his failure to be selected for continuation on active duty.  He adds that he has now been told that he would have been eligible for the Voluntary Early Retirement Program (VERP) if he had remained on active duty until 20 August 1993 and if he had known that, would have opted to remain on active duty until that date.

4.  In support of his application he submits documentation he had submitted to the Total Army Personnel Command (PERSCOM) in support of his request to be administratively reinstated on active duty in the AGR program.  In that correspondence he states that section 4413 of the National Defense Authorization Act of 1993 (Public Law 102-484) prohibited the involuntary separation of active duty soldiers with over 15 years of service except when that separation was for cause.  Therefore, since his involuntary release from active duty was not for cause, it was prohibited by PL 102-484.  He also submits extensive documentation from the Under Secretary of Defense and other Army staff offices showing the necessity for a reduction of the AGR force during the time in question, the inability/refusal of the Army to implement voluntary separation incentives, and statistics showing the number of AGR soldiers who had not been selected for continuation on active duty and the percentage those numbers represented to those considered.

5.  The Chief, Army Reserve (CAR) had responded to the applicant’s request in a letter stating that he was not eligible for the VERP, as it was only applicable to those AGR soldier’s who were on active duty between 20 August and 20 September 1993.  The CAR continued that his MSM had been missing from the file reviewed by the continuation board, but the absence of that award was not significant enough to warrant his reconsideration by the continuation board.  The CAR also stated that the “flags” were not seen by the continuation board.

6.  A memorandum from the Chief, Military Personnel Law Branch, Office of The Judge Advocate General of the Army (OTJAG) is included as a part of the documentation the applicant submitted to the Board.  In that memorandum PL 102-484 is quoted as follows:

During the force reduction transition period, a member of the Selected Reserve may not be involuntarily discharged from a reserve component of the Armed Forces, or involuntarily transferred from the Selected Reserve, before the Secretary of Defense has prescribed and implemented regulations that govern the treatment of members of the Selected Reserve assigned to such units and members of the Selected Reserve that are being subjected to such actions and a copy of such regulations has been transmitted to the Committees on Armed Services of the Senate and House of Representatives.

The OTJAG then opined that the language of PL 102-484 “literally prohibits the involuntary discharge or separation from the Selected Reserve, between 23 October 1992 and 30 September 1995, of soldiers who are non-selected for continuation in the AGR program . . .”

7.  The applicant's military records show that while serving as a major on active duty in the AGR program, on 18 March 1993 the applicant was notified that he had considered by the USAR AGR Officer/Sergeant Major Continuation Board which convened on 19 January 1993.  That board had not recommended that he be continued in the AGR program.  Attached to that notification was a document containing material error guidance which listed the circumstances in which a continuation board’s recommendation would normally be reconsidered.  One of those reasons was the absence of “An award or decoration for valor (Bronze Star or higher), Meritorious Service Medal, or higher award for meritorious service or achievement . . .”

8.  As a result of his nonselection for continuation, the applicant was honorably released from active duty and transferred to a USAR unit on 30 July 1993.  He had completed 7 years, 11 months and 27 days of active duty during that period of service and had 7 years and 7 days of prior active duty.

9.  During the applicant’s active duty in the AGR program, he was given the following Officer Efficiency Reports (OER’s) which would be considered less than that which would be expected of a professional AGR officer:  

	- for the period covering 5 August 1985 to 4 August 1986 he was assigned a “2” for “Possesses military bearing and appearance” (on a scale of 1 to 5, 1 being the best and 5 the worst); 

	- for the period covering 5 August 1986 to 22 March 1987 he was assigned a “2” for “Clear and concise in oral communications”; 

	- for the period covering 23 March to 2 December 1988 he was assigned a “2” for “Performs under physical and mental stress” and for “Possesses military bearing and appearance”; and 

	- for the period covering 1 June 1990 to 31 May 1991 he was assigned a “2” for “Maintain appropriate level of physical fitness” and for “Clear and concise in written communications”.  On that OER it was noted that he had failed the Army Physical Fitness Test (APFT).  That OER was considered adverse and was referred to him for comment.  The applicant did not submit any statements in his own behalf.  

10.  In addition, while on active duty in the AGR program he was given a suspension of favorable personnel actions twice.  Once for APFT failure and once for failure to comply with the body fat standards of the Army Weight Control Program.

11.  The CAR transmitted a message on 16 August 1993 implementing the VERA for individuals with more than 15 but less than 16 years of service as of 31 December 1993.  The application period for the VERA was from 20 August to 20 September 1993 and the required date of retirement for those soldiers whose applications were approved as 1 January 1994.

12.  Army Regulation 140-185, Glossary, defines the Selected Reserve as individuals assigned to units, to Individual Mobilization Augmentee (IMA) positions, and to AGR positions.

13.  In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the CAR.  The CAR stated that the applicant’s MSM was not considered by the continuation board and, while that is sufficient grounds to grant reconsideration of the nonselection, the final decision of whether reconsideration is granted lies with the director of the Full Time Support Management Center (FTSMC).  In the applicant’s case, the director of FTSMC determined that the missing MSM would not have significantly affected the board’s decision.  The CAR continues that the continuation board was not used as a drawdown tool to reduce the ranks of the AGR program.  Lastly, the CAR stated that the applicant’s Official Military Personnel File (OMPF) did contain the offending “flags” which were likely to be viewed as unfavorable by the continuation board, and that his OMPF is missing two OER’s.

14.  In response to that advisory opinion, the applicant submitted a rebuttal in which he states that his statistical evidence, along with the documentation showing the need of the AGR program to reduce its force without having any voluntary separation incentives, clearly refutes the CAR’s statement that the continuation boards were not used as a drawdown tool.  The applicant then states that the CAR’s advisory opinion contradicts a previous CAR statement that his “flags” were not reviewed by the continuation board.  Lastly, he challenges the propriety of letting one individual determine whether missing documentation would have influenced the continuation board.

15.  In the processing of this case the staff of the Board found it necessary to contact the FTSMC for additional information.  The FTSMC stated that while AGR personnel may have been held to higher standards during the time the applicant was separated, continuation boards were not being used as force shapers in conjunction with the drawdown of the military.  The FTSMC also stated that individuals who were not selected for continuation were not offered the VERA.

CONCLUSIONS:

1.  It is feasible that the continuation board either saw documentation it was not supposed to see or didn’t see documentation that it was supposed to see, or both.  Accordingly, it would be appropriate to grant the applicant a reconsideration by an AGR continuation board using the standards in effect at the time of his original continuation board.

2.  The applicant’s contention that the AGR continuation boards were used as a drawdown tool in contravention with PL 102-484 is not substantiated by the evidence of record.  The fact that the CAR was trying to obtain voluntary separation incentives authority for AGR personnel during the time the applicant was separated, and the fact that the percentage of AGR personnel who were not selected for continuation increased during that time, only show that the CAR was trying to manage his AGR force and take care of those AGR soldiers who were going to lose their status in the AGR program due to decreased funding and requirements.  In such an era it is not surprising that serving AGR officers were being held to higher standards than their predecessors.

3.  In addition, contrary to the applicant’s contention and the OTJAG’s memorandum, PL 102-484 only stated that during the force reduction transition period a member of the Selected Reserve could not be involuntarily discharged from a reserve component of the Armed Forces, or involuntarily transferred from the Selected Reserve.  The applicant was released from active duty, albeit his active duty was in the Selected Reserve, and transferred to a USAR unit, also a Selected Reserve status.  As such, he was never discharged from a reserve component nor was he transferred from the Selected Reserve.  His status in the Selected Reserve merely changed.

4.  It is also noted that if the applicant had elected to remain on active duty until 20 August 1993, he still could not have retired under the VERA.  The VERA was not being offered to those officers who were not selected by a continuation board.  In addition, 20 August 1993 was well prior to the 1 January 1994 retirement date established for all approved VERA applications.

5.  In summary, the applicant’s contentions that his separation was prohibited by Public Law 102-484 and that his separation was part of a prohibited reduction of the AGR force is not supported by the evidence of record.  However, there is sufficient evidence to support the possibility that the personnel file reviewed by the continuation board did not contain the documentation that it was supposed to contain.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the personnel records of the individual concerned, records which contain all of the applicant’s officer evaluation reports, awards and decorations, and containing no suspensions of favorable personnel actions, be considered by an AGR continuation board using the standards in effect at the time of his original continuation board in 1993.

2.  That, if he is selected for continuation that his release from active duty on 30 July 1993 be voided and he be retained on active duty with full pay and allowances until 31 December 1993.

3.  That, if otherwise qualified for a 15-year retirement that he be retired on 1 January 1994 in the grade of major with entitlement to all retired pay from that date.

4.  That he be afforded the appropriate Survivor’s Benefit Plan counseling prior to retirement.

5.  That if he is not selected for continuation after reconsideration, that both he and the Board be notified of that decision.

6. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON