RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 MARCH 2007
	DOCKET NUMBER:  AR20060008632 


	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.  




Acting Director



Analyst


The following members, a quorum, were present:


Chairperson


Member


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, to be reappointed as a commissioned officer and paid all back pay and allowances from 1 March 2006.

2.  The applicant states that prior to his retirement, he served as a Title 10 Army Guard Reserve (AGR) officer stationed at the United States Northern Command. He maintains that the National Guard Bureau (NGB), Office of Staff Management failed to consider him before an Active Federal Service Tour Continuation Board for continuation of service beyond 20 years.  The applicant insists that he was discharged and placed on the retired list despite his desire to continue active service.  As a result, the applicant believes that he is due and requests back pay and allowances and reappointment as a commissioned officer.

3.  The applicant provides various orders, NGB Continuation Board Announcement, e-mail correspondence, Application for Extension, DD Form 214 (Certificate of Release or Discharge from Active Duty) and a supporting statement.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board show that the applicant was an Army National Guard officer attached to the US Army Element, United States Northern Command (USNORTHCOM), Colorado Springs, Colorado.

2.  Orders 231-1, dated 19 August 2003 lists the applicant’s report date to   USNORTHCOM as 1 October 2003.  The period of his active duty commitment was listed as 2 years and 5 months from 1 October 2003 to 28 February 2006.  The order constituted active duty and transferred the applicant from Title 32 
AGR (State funded) to Title 10 AGR (Federally funded).  Additionally, 
paragraph (v) of this same order states "This is a one time occasional tour."

3.  A Memorandum, subject:  2004 Army National Guard AGR Active Federal Service Tour Continuation Board (AFSTCB), dated 9 October 2003, stated that a board would convene on 12 January 2004 to evaluate all Title 10/AGR officers
who would either reach 19 years of Active Federal Service, or those whose current extension ended between 1 July 2004 and 30 September 2005.  The memorandum was sent to all Soldiers identified as being in the zone of consideration and had the option to be evaluated by the board for continuation in the AGR program.  The applicant stated that he did not receive a copy of this memorandum.

4.  E-mail traffic from the applicant dated 10 December 2003 shows that he contacted several individuals within the NGB concerning a board that was scheduled to convene in January 2004 to retain AGR officers beyond 20 years of active Federal service.  The applicant stated in the e-mail that he did not know that he was on a one time tour.  The applicant said that if he knew his retirement was 6 months after graduation from the Army War College in July 2005, he would have raised a flag at that time. 

5.  On 29 January 2004, the Chief of Staff responded to the applicant’s inquiry on Title 10 Soldiers.  The Chief of Staff stated that his office would conduct a review of the applicant’s orders and supporting documents to ascertain the possibility of retaining him on active duty as a Title 10 Soldier once he completed 20 years of service.

6.  A memorandum dated 31 May 2005 shows that the applicant requested a tour extension to serve in his current capacity as Chief, Joint Operations Team, Standing Joint Force Headquarters.  The applicant’s request was endorsed by three general officers.  A copy of the final action was not provided.

7.  On 9 January, 19 January, and 3 March 2006, the applicant was requested by name as a retiree recall.  The memoranda requested that the applicant be recalled to active duty to fill a position with the U.S. Northern Command.  

8.  Orders 10-2, dated 10 January 2006, retired the applicant from active duty effective 28 February 2006.

9.  A supporting statement from the applicant’s former supervisor stated that the applicant was a superlative officer and the USNORTHCOM wanted to retain him past his tour date for continued service.  The former supervisor said he coordinated the applicant’s retention past 20 years with the acting director of the NGB Staff and the J1.  He was informed that the NGB would not support extending the applicant on active duty past 20 years of active Federal service, but would support his immediate recall to active duty after the applicant’s retirement.  The former supervisor admitted that he was astounded to find out that both the NGB and the US Army reneged on their previous decision to recall the applicant to active duty once he had retired.

10.  In the processing of this case an advisory opinion was obtained from the Personnel Division, NGB, Arlington, Virginia.  The Personnel Division recommended disapproval of the applicant’s request.  The advisory opinion restates the documents discussed in the preceding paragraphs.  The Chief, Personnel Division stated that upon coordination with the NGB, Staff Personnel Division Management Office, Tour Continuation Board Chief, it was stated that officers brought in the Title 10 Tour, are brought in on a one time, one tour for no more than three years and that extensions for continuation are not approved.  They also stated that officers are briefed before they come into the program.  It was also discussed that most officers after completion of tour revert to the state of origin as either a Title 32 AGR or M-day (drilling Guardsman) if the State has an authorized position.  The Personnel Division stated that they contacted the Military Personnel Office to verify if Oregon Army National Guard was going to get additional colonel positions in fiscal year 2008 and was told that no colonel positions will be added to their table of distribution and allowance for fiscal year 2008 and 2009. 

11.  The advisory opinion was forwarded to the applicant for his acknowledgement and/or rebuttal.  The applicant argues that the advisory opinion is no more than a recitation of the information he has provided.  He maintains that there was no law, regulation or policy to explain the NGB’s failure and subsequent refusal to board him for continued service.  He also argues that he was never briefed concerning the Title 10 Tour program.  The applicant concluded that the NGB has failed to provide any factual evidence or legal rationale that would justify its action towards him in this matter as anything other than arbitrary.

12.  National Guard Regulation 600-10 (Army National Guard Tour Program) states that the Chief, National Guard Bureau is the approving authority for all AGR tour positions and personnel.  Additionally, approval is required by Office of the Deputy Chief of Staff for Personnel (ODCSPER) for any AGR tour which would result in a member being credited with 18 or more years of active federal service at any time during an initial two-year tour. 

13.  Paragraph 4-2f, of the same regulation states, in pertinent part, to qualify for selection and assignment to the AGR tour program each applicant must be able to serve at least 5 years in an active status prior to becoming eligible to receive military retired pay or subject to mandatory removal under section 3848 or 3851, Title 10, United States Code, unless a waiver is granted by ODCSPER. 

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant’s orders placing him on active duty as a Title 10 AGR Soldier clearly shows his period of active duty as 2 years and 5 months from 1 October 2003 to 28 February 2006.  Whether or not it was 
made clear to the applicant that he was brought in on a one time tour program is irrelevant considering the fact that his orders specifically stated "This is a one time occasional tour."

2.  It is unfortunate that an officer of the applicant’s caliber was not eligible to have his records reviewed by the AFSTCB, and subsequently selected for retention beyond 20 years.  This was not an oversight.  The regulation, as cited above, specifically charges the Chief, NGB and ODCSPER with approval authority for all AGR tour positions and personnel.  It appears that the applicant was not eligible for consideration for retention based on the fact that he was on a one time tour.  

3.  Additionally, the NGB opinion states that the Oregon Army National Guard is not scheduled to receive any additional colonel positions in fiscal year 2008 and 2009.  Therefore, the applicant’s request to be reappointed as a commissioned officer cannot be granted and no basis has been established to grant his request for back pay and allowances from 1 March 2006.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LS  ___  __JM ___  ___RV __  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.


____   Linda Simmons______
          CHAIRPERSON

INDEX

CASE ID
AR20060008632
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070322
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
136.00
2.

3.

4.

5.

6.