IN THE CASE OF:	  

		BOARD DATE:	        17 MARCH 2009

		DOCKET NUMBER:  AR20080007353 


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 that he be reinstated in the Virgin Islands Army National Guard (VIARNG) and the Active Guard Reserve (AGR) program.

2.  The applicant states that he was wrongfully released from the VIARNG and the AGR program under Title 32, U.S. Code (USC) after serving 18 years of active service with no pending adverse actions.  He states he has made several appeals to take corrective actions, but to no avail.  He also states that his case was referred to the National Guard Bureau (NGB) and they directed the VIARNG to immediately reinstate him back into the VIARNG and the AGR program until 31 July 2004.  He alleges that he was released from active duty without proper authority or cause.  In accordance with Title 10, USC, section 12686, he had met the sanctuary requirements which should have afforded him the opportunity to remain in an active status to his 20-year retirement.  Also, his primary specialty skill identifier (PSSI) was 31A (Military Police) which placed him under the Stop Loss program during the period of his release.  

3.  The applicant provides documentation as listed in the Table of Contents, in support of his application.  

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.  The applicant was born on 17 November 1957.  After having had prior active and inactive service, he was appointed as a second lieutenant in the VIARNG on 29 May 1983.  He was awarded primary specialty number and title 31A, Military Police General.  

3.  Headquarters, VIARNG, St. Croix, U.S. Virgin Islands Orders Number 85-7, dated 11 May 1988, ordered the applicant to Full Time National Guard Duty (FTNGD) in an AGR status under Title 32, USC for the period 15 May 1988 to 14 May 1991.

4.  Headquarters, VIARNG, St. Croix, U.S. Virgin Islands Orders Number 44-1, dated 1 April 1991 ordered the applicant to FTNGD in an AGR status under Title 32, USC for the period 15 May 1991 to voluntary indefinite.  

5.  He was promoted to the rank of major on 10 December 1993.

6.  His notification of eligibility for retired pay at age 60 (20 Year Letter) was issued on 2 April 1998.

7.  In a 24 April 2001 memorandum, the VIARNG informed the applicant that he was selected for retention.  He was also informed that he would be considered again in Calendar Year (CY) 2002.  

8.  Headquarters, VIARNG, St. Croix, U.S. Virgin Islands, Orders Number 43-1, dated 15 May 2002, separated the applicant from the ARNG effective 25 May 2002 and transferred him to the U.S. Army Reserve Control Group (Reinforcement) on the following date.  

9.  Headquarters, VIARNG, St. Croix, U.S. Virgin Islands, Orders Number 47-1, dated 13 June 2002, amended Orders 43-1, dated 15 May 2002, and changed the applicant’s effective date of separation from 25 May 2002 to 10 July 2002.  

10.  The applicant was honorably released from active duty in the AGR program, Title 32, USC, on 10 July 2002, under the provisions of Army Regulation 135-18, paragraph 4-11b(1) and National Guard Regulation (NGR) 635-100, paragraph 2-1a(20) by reason of Selective Retention Board Not Recommended for AGR Continuation and Failure of Selective Retention.  His DD Form 214 shows he completed 14 years, 1 month, and 26 days of total active military service during the period covered by the report and 17 years, 1 month, and 25 days of total active military service.  

11.  The applicant was separated from the ARNG and the Reserve of the Army on 10 July 2002 under the provisions of National Guard Regulation 635-100, paragraph 2-1a(20) as a result of failure of selective retention.  On the 
following date, he was transferred to the U.S. Army Reserve Control Group (Reinforcement).  His NGB Form 22 shows he completed 19 years, 1 month, and 12 days of net service this period and 25 years, 6 months, and 11 days total service for retired pay.

12.  His ARNG Retirement Points History Statement, dated 5 November 2007, shows the applicant completed 25 years, 6 months, and 11 days of creditable service for retired pay.  

13.  In a 29 July 2002 memorandum, the Chief, Personnel Policy, Programs and Manpower Division, NGB informed the Adjutant General of the Virgin Islands that the VIARNG did not have the authority to separate the applicant.  Several reasons were cited which made the applicant not eligible for separation to include the following: (1) non-selection for retention by the Selective Retention Board (SRB) for CY 2002; (2) designated career field of MOS 31 identified in ARNG Stop Loss Military Personnel Message Number 02-004, paragraph 5A;
(3) achieved sanctuary as a Reservist on active duty within two years of retirement in accordance with Title 10, USC, section 12686; (4) second 
non-selection for promotion to lieutenant colonel by the 2001 Department of the Army (DA) Mandatory Promotion Board and would not be credited with 20 years of commissioned service until 28 May 2003; (5) not provided the minimum 90 days mandated in Title 10, USC, section 1142a for preparation counseling; (6) loss of 44.5 days of leave; and (7) the VIARNG unauthorized to conduct boards to determine AGR Soldier’s eligibility for continuation in the AGR program to achieve an active federal service retirement.

14.  Paragraph 3(b) of the NGB memorandum, dated 29 July 2002, referenced the VI-HRO memorandum, dated 9 October 2002, subject: AGR 17 years 
Continuation Board (memorandum not available).  This memorandum indicated that the VIARNG had and/or was conducting boards to determine an AGR Soldier's eligibility for continuation in the AGR program to achieve an active federal service retirement.  It was stated that "There is no authority to convene such boards.  Soldiers released from active duty as a result of determinations made by these illegal, unauthorized continuation boards are eligible for reinstatement to the AGR program."

15.  In a 29 July 2002 memorandum, the Chief, Personnel Policy, Programs and Manpower Division, NGB informed the applicant that ARNG did not have the authority at that time to offer him the Temporary Early Retirement Authority (TERA).  It was noted that questions pertaining to his non-selection for continued service as a traditional guardsman were raised.  He was informed that these issues would be addressed by the Officer Policy Section to his Adjutant General. 

16.  In an 11 February 2008 memorandum, the Adjutant General, VIARNG informed the ABCMR that the applicant was wrongfully discharged from the VIARNG in July 2002.  The Adjutant General stated that, despite an NGB directive issued in July 2002 to reinstate him to an AGR status until he attained 20 years of creditable service for retirement, he was not reinstated.  

17.  In the processing of this case, a staff advisory opinion was obtained from the NGB.  The opinion recommended approval of the applicant's request to be reinstated in the VIARNG AGR program for the period 10 July 2002 to 31 July 2004.  It was also recommended that the applicant receive all pay and allowances as a result of this reinstatement.  The opinion referenced the NGB memorandum dated 29 July 2002, Title 10, USC, section 12686, and Title 10, USC, section 14506.  The opinion indicated that the current VIARNG Adjutant General (in the memorandum to the ABCMR dated 11 February 2008), expressed his desire to reinstate the applicant in the VIARNG and the AGR program to remedy any injustice suffered by the applicant. 

18.  A copy of the advisory opinion was forwarded to the applicant for comment; however, he did not respond within the allotted timeframe.  
 
19.  Army Regulation 135-18 (The AGR Program), paragraph 4-11a, in effect at the time, stated that officer continuation boards would be convened at least annually by NGB and Office of Chief of Army Reserve (OCAR) to consider officers in the third year of their initial tour of duty for continuation in the AGR Program.  

20.  Subparagraph 4-11b(1) stated that officers who were not recommended for AGR continuation by a continuation board, enlisted Soldiers selected for removal from AGR status by a qualitative board, and officers and enlisted Soldiers subject to voluntary or involuntary removal from an AGR status, would be released from Active Duty or Full-Time National Guard Duty according to applicable regulations. 
21.  Army Regulation 135-18 states that AGR officers, to include warrant officers and commissioned officers, will be released from active duty or Full-Time National Guard Duty when they have attained 20 years of active service according to the policies prescribed in Army Regulation 600-8-24 or NGR 600-5 (The Active Guard/AGR Program, Title 32, FTNGD), unless approved for extension.

22.  Title 10, USC, section 12686(a) states that, under regulations to be prescribed by the Secretary concerned, a member of a reserve component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay under a purely military retirement system, may not be involuntarily released from that duty before becoming eligible for that pay unless the release is approved by the Secretary.

23.  Title 10 USC, Section 14506 provides that an officer in the reserve grade of major who was considered but not recommended for promotion by two selection boards shall be transferred to the Retired Reserve if qualified and makes application or shall be discharged from his reserve appointment if not qualified for transfer to the Retired Reserve upon completion of 20 years of commissioned service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a second lieutenant in the VIARNG on 29 May 1983 and was ordered to full time duty in the VIARNG AGR program in May 1988 and again in May 1991 for an indefinite period.  

2.  The applicant contends that he was wrongfully released from the VIARNG and the AGR program after serving 18 years of active service.  

3.  The NGB memorandum, dated 29 July 2002, indicated the applicant was not selected for retention by a CY 2002 SRB.  As a result, he was released from the 
AGR program and as a Reserve of the Army on 10 July 2002.  At the time of his separation, his DD Form 214 indicated he had completed 25 years, 6 months, and 11 days of creditable service for retired pay and 17 years, 1 month, and 25 days of active Federal service.  However, the NGM memorandum indicated he had completed over 18 years of active Federal service.

4.  Based on Army Regulation 135-18 in effect at the time, continuation boards were convened by the NGB and the OCAR.  However, it appears that the CY 2002 SRB was improperly convened by the VIARNG and the applicant was erroneously released from the AGR program and as a member of the VIARNG.  
5.  The NGB memorandum, dated 29 July 2002, informed the Adjutant General of Virgin Islands that the VIARNG did not have the authority to separate the applicant.  The NGB recommended that the applicant be immediately reinstated into the VIARNG and the AGR program until 31 July 2004 when he reached 20 years of active Federal service.  However, it appears that no action was taken to reinstate the applicant.  

6.  According to Title 10, USC, section 12686(a), a member of a Reserve component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay under a purely military retirement system, may not be involuntarily released from that duty before becoming eligible for that pay unless the release is approved by the Secretary.

7.  Since the applicant was within two years of becoming eligible for retired pay, he should not have been separated from the VIARNG and the AGR program.  

8.  The advisory opinion from the NGB indicated that the current VIARNG Adjutant General recommended that the applicant be reinstated in the VIARNG and the AGR program to remedy any injustice suffered by the applicant.  

9.  It appears the applicant was erroneously discharged from the VIARNG and the AGR program on 10 July 2002.  Therefore, it would be equitable to correct his records to show he remained in the VIARNG until 31 July 2004 at which time he was released from active duty for the purpose of retirement and that he be paid all pay and allowances and retired pay due to him.  

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all the State Army National Guard records and Department of the Army records of the individual concerned be corrected by:
	a.  voiding his 10 July 2002 discharge from the VIARNG and the AGR program;

	b.  showing he was retained on active duty until 31 July 2004, when he was released from active duty for the purpose of retirement after completing 20 years of active Federal service;

	c.  placing him on the Retired List effective 1 August 2004;

	d.  amending item 8b (Effective Date) on his NGB Form 22 to show the entry "2004 07 31" with appropriate recalculations of item 10 (Record of Service); 

	e.  amending his DD Form 214 for the period ending 10 July 2002 accordingly; and

	f.  paying him all pay and allowances and retired pay due as a result of the above corrections.




________XXX _   _____ ___
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)                                         AR20080007353



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ABCMR Record of Proceedings (cont)                                         AR20080007353



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