MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 November 2001
         DOCKET NUMBER: AR2001053043

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

Mr. Carl W. S. Chun		Director
Mr. Paul A. Petty		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Ms. Regan K. Smith		Member
Mr. Melvin H. Meyer		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that he be reinstated in the Idaho Army National Guard (IDARNG) as an Active Guard Reserve (AGR) officer with Federal recognition and that he be granted early retirement from Active Federal Service under the provisions of the Temporary Early Retirement Authority (TERA), retroactive to 27 November 1999, the date he was discharged from the IDARNG.

APPLICANT STATES: In effect, that he was improperly and unjustly selected for elimination as a drilling guardsman by the Calendar Year 1999 (CY99) IDARNG Selective Retention Board in spite of his long service, outstanding record, commendations, more than adequate civilian and military education, his Army Physical Fitness Test (APFT) test results, and the IDARNG’s 90% manning strength. As a result of not being selected for retention by the board as a drilling guardsman, his AGR status was also unjustly terminated just short of 18 years Active Federal Service (AFS) and lock-in to retirement with 20 years AFS. He contends that the National Guard Regulation (NGR) 635-102, which governs the state selective retention boards is contradictory and should not apply to him in his Title 32 AGR status. He contends that the CY99 Selective Retention Board President was biased against him and unjustly influenced the board to not select him for retention. The board president was one of his former senior raters who did not like the applicant’s performance and leadership style and gave him a below center of mass referred Officer Evaluation Report (OER). The applicant obtained and provides a copy of the IDARNG CY99 Selective Retention Board Report. He provides copies of two appeals to the IDARNG The Adjutant General (TAG) for reconsideration and the TAG’s denials. He provides copies of correspondence between himself and the IDARNG Inspector General concerning the propriety of the board proceedings. He also provides copies of letters and certificates of commendation and appreciation.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted in the United States Air Force Reserve (USAFR) on 27 April 1973, and then served 11 months and 1 day on active duty. He had a civilian break in service and then enlisted in the Army National Guard (ARNG) on 13 September 1975, for Officer Candidate School. He was commissioned as a Combat Engineer officer in the Army National Guard on 27 June 1976, and served as a drilling guardsman. He attended the Infantry Officer Basic Course at Fort Benning from 23 May through 27 July 1977, where he graduated on the Commandant’s List. He attended the Engineer Officer Advanced Course at Fort Belvoir from 8 June through 1 September 1983, where he graduated third in his class. He was promoted to the rank of captain on 27 February 1984.




On 14 May 1984, the applicant was accepted into the Title 10 Active Guard Reserve (AGR) program and placed on active duty with the 1^st Reserve Officer Training Corps (ROTC) Region. On 1 January 1986, he was accepted into the Title 32 AGR program and assigned to the IDARNG. Title 10 funding and positions are controlled by the National Guard Bureau and the Title 32 funding and positions are controlled by the individual state ARNGs.

On 10 October 1986, the applicant completed the Combined Arms and Services Staff School. He was promoted to the rank of major on 23 December 1991. On 17 May 1993, he completed the nonresident Command and General Staff College exceeding course standards and was placed on the Commandant’s list for exceptional academic performance.

On 3 April 1995, he was notified by letter, that effective 16 September 1994, he had completed the required 20 years Reserve and Active Duty to be eligible for retired pay at age 60. On 13 August 1997, he was promoted to lieutenant colonel.

On 19 July 1996, 17 July 1997, and 27 May 1998, the applicant was notified by letter, signed by the IDARNG Adjutant General, that he had been considered by annual selective retention boards which recommended him among the best qualified for continued retention in the IDARNG.

On 31 March 1999, the applicant was eligible for retirement under the Temporary Early Retirement Authority (TERA) based on his Active Federal Service (AFS). On that date, the applicant had just over 16 years AFS. The TERA requires a minimum of 15 years AFS to be eligible for retirement under that program.

On 24-26 May 1999, the applicant’s file was reviewed by an IDARNG CY99 Selective Retention Board under the provisions of NGR 635-102 (Officers and Warrant Officers Selective Retention). According to this regulation, such boards are convened in each state annually to consider drilling ARNG officers and warrant officers in the grades of colonel and below for selective retention beyond 20 years of qualifying service for retired pay. On 28 June 1999, he was notified that he was not selected for retention as a drilling ARNG officer which also meant that he could not retain his AGR status.

The board report showed that the reasons the board did not select him for retention were: (1) performance – evaluations are average or below center of mass for his peer group; (2) APFT – marginal or below Army standards (December 1998 run failure); (3) potential – limited because of performance and comments on potential in his evaluation.


His OERs from 1985 to 1999 showed 3 with no senior rating due to insufficient rating time, 9 center of mass reports, and 5 below the center of mass reports. The center of mass reports are all first or second block center of mass reports. This first below center of mass report was a third block report ending on
28 December 1986 while a captain. The second below center of mass report, which ended on 6 July 1990, was also a third block report and referred while a captain. The third, fourth, and fifth below center of mass reports were second block reports ending respectively on 10 April 1997, while a major, 31 December 1997 while a lieutenant colonel, and 31 May 1998, while a lieutenant colonel.

The applicant’s APFT score card shows that he had passed the APFT on
30 April 1996, 2 November 1996, and 17 October 1997, with scores of 217, 227, and 213 (180 points is the minimum passing score). On 3 December 1998, he failed to achieve a passing score on the 2 mile run on an APFT. However, the next test taken on 21 January 1999, shows that he was given a profile for the
2 mile run, passed the approved alternate 2.5 mile walk, and achieved passing scores of 65 points and 76 points respectively on push ups and sit ups (60 points is the minimum passing score).

Comments on the applicant’s potential on his OERs by both raters and senior raters are generally laudatory and generally recommend him for further assignment and responsibility.

He appealed the non-retention decision twice to the IDARNG Adjutant General who denied both appeals. He requested an IDARNG Inspector General (IG) review of the board procedures and decision. The IG found no error or injustice. The IG did refer the applicant’s allegation of impropriety on the part of the board president to the Department of the Army Investigations Division for review. The applicant has provided no further information on this issue.

On 27 November 1999, his AGR tour was terminated and he was honorably separated from the ARNG and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) by corrected orders 447-005, State of Idaho Military Division, dated 2 December 1999. These orders were further amended by orders 401-025, State of Idaho Military Division, dated 13 January 2000, to show the authority for separation as NGR 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5a(22), as a result of failure of selective retention according to NGR 635-102. As of
27 November 1999, the applicant had 16 years, 5 months, and 14 days Active Duty and 2 years, 3 months, and 15 days time in grade as a lieutenant colonel. He had accumulated 6419 Active Duty points or about 17 years, 9 months, and 29 days AFS. He had also accumulated 25 years, 2 months, and 11 days combined Active and Reserve duty creditable service.


His awards and decorations include the Meritorious Service Medal, the Army Commendation Medal (4 awards), the Army Achievement Medal (2 awards), the Army Reserve Components Achievement Medal (6 awards), and the Armed Forces Reserve Medal (2 awards).

In order for ARNG AGR officers to be eligible for early retirement under the Temporary Early Retirement Authority (TERA) for Fiscal Year 1999 (FY99), as authorized by the National Defense Authorization Act of Fiscal Year 1998, they must: (1) be in the pay grade of 05 (lieutenant colonel) or 06 (colonel); (2) have a minimum 3 years time in grade, waivable to 2 years; (3) have attained a minimum of 15 years active service by 30 September 1999; (4) be fully qualified for retention; (5) not be within one year of their mandatory removal date; and
(6) not recommended for release based on Tour Continuation Boards or Selective Retention Boards. The TERA program was not continued beyond FY2000.

The NGR 635-102 states that it applies to all ARNG commissioned officers and warrant officers who are not in active Federal service and that it is applicable to those on AGR status (Title 32). This regulation directs that retention selection boards will be convened in each state annually to consider drilling ARNG officers and warrant officers in the grades of colonel and below for selective retention beyond 20 years of qualifying service for retired pay. This selective retention board will be conducted independently from AGR tour continuation boards governed by NGR 600-5.

The National Guard Bureau Personnel Division rendered an opinion that the applicant’s record was properly reviewed by a State Adjutant General Selective Retention Board and he was not selected for retention. His case was reviewed twice on appeal and once by the state IG. The advisory opinion recommends denial of the applicant’s request.

The applicant’s counsel rebutted the IDARNG Selective Retention Board’s findings, that the applicant’s potential was limited based on his evaluations, stating that the findings were contrary to the comments on the applicant’s evaluations. The applicant’s evaluations were replete with laudatory remarks and recommendations to promote ahead of his contemporaries and assign to positions of greater responsibility and scope. The counsel challenges the non-retention decision appeal process as a sham since the same general officer that made the decision on the non-retention is also the same general officer that denied the appeals. The counsel further contends that the applicant’s file met and exceeded all of the retention criteria of the selection board but that the counsel and applicant suspect some behind the scene prejudice that brought about the applicant’s termination.


DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The applicant was eligible to apply for early retirement under the FY99 TERA but did not apply since he had always been selected for retention/continuation and was under the impression that he had a good record with significant commendations and more than satisfactory civilian and military education. He served faithfully for almost 18 years in Active Federal Service, mostly in the AGR program, and served for more than 25 years combined Active and Reserve duty. Further, he did serve in the rank of lieutenant colonel for the required time in grade, with waiver, for retirement at that rank.

2. However, decision authority to grant or deny TERA to Title 32 AGR soldiers rested with the respective State Adjutants General as opposed to the National Guard Bureau for Title 10 AGR soldiers. There is no evidence that the applicant would have been approved by the State Adjutant General, had he applied.

3. Title 32 AGR service is designed to meet individual state needs, which vary by mission. Career opportunity is more limited than under Title 10. Since retention as a Title 32 AGR soldier is subject to the review by two different retention boards, service in Title 32 AGR positions is more tenuous. The applicant should have been aware of that after reaching his 20 year of service qualifying him for retirement at age 60, he was at risk for continuation, regardless of his record. He took the risk of continuation rather than apply for TERA when he was eligible.

4. 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 show error or injustice has occurred as a result of non-selection by the IDARNG Selective Retention Board.














5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__jp___ __rs___ __mm______ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001053043
SUFFIX
RECON
DATE BOARDED	20011120
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	136 – Retirement/Separation
2.
3.
4.
5.
6.