IN THE CASE OF:	  

		BOARD DATE:	  30 June 2009

		DOCKET NUMBER:  AR20080017587 


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, in effect, retention in the rank of Major in the Alabama Army National Guard until he reaches age 60 in order to qualify for an unreduced civil service annuity as a military technician (dual status officer).

2.  The applicant states he was discharged from the Alabama Army National Guard because he was not promoted to lieutenant colonel on two occasions.  He notes, however, that he was selected for promotion by a Department of the Army Board on two occasions but was not promoted by the Army National Guard because he declined the promotions.  

3.  The applicant states that Title 10, United States Code (USC), section 10216(f) provides for the retention of dual status officers, such as himself, to continue to serve beyond any mandatory removal date until they reach age 60 and attain eligibility for an unreduced annuity.  He believes the Army National Guard is in violation of the federal law in denying him the right to continue to serve as an officer until he reaches the age of 60.

4.  The applicant provides copies of a 2001 and 2006 memorandum notifying him of his selection for promotion to lieutenant colonel and a 2008 memorandum confirming his second non-selection for promotion.  He also provides a copy of a 2008 self-authored memorandum asking whether 10 USC, Section 10216(f) permitted his retention until age 60.  He includes copies of his officer evaluation reports and technician performance appraisals in support of his request as well as a statement from his legal representative.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in addition to being retained in the Army National Guard in the rank of major, that the applicant’s attorney fees also be reimbursed.

2.  Counsel states the applicant, his client, was notified in June 2008 that he was to be separated from his position with the Alabama Army National Guard and that his Federal Recognition would be withdrawn on 1 October 2008.  Counsel notes this would also mean the applicant would be dismissed from his civil service position, since his civil service position was contingent upon maintaining a position with the Alabama Army National Guard.

3.  Counsel states the applicant has been a “dual status” officer with the Alabama Army National Guard since May 1985, but had been an Army National Guard officer since May 1982 after having served with the Iowa National Guard previously.  He states the applicant has served as a civil service employee for 
19 years.  He notes the applicant’s record as an officer has been impeccable and his “civil service record as a GS-9 is equally impressive.”

4.  Counsel states that in March 2001 the applicant was notified that he was selected for promotion to lieutenant colonel by a Department of the Army Board, but had no choice but to decline that promotion because the Alabama Army National Guard did not promote him to lieutenant colonel.  Counsel notes the applicant was placed in a three-year deferral status at that time.  In January 2006 the applicant was again notified of his selection for lieutenant colonel but again had to decline because of the National Guard’s refusal to promote him to lieutenant colonel.  He was then placed on a one year deferral.

5.  Counsel notes that in June 2008 the applicant was informed that his Federal Recognition would be removed and he would be separated.  Counsel maintains that the Army National Guard’s decision to remove the applicant violates federal law under 10 USC, Section 10216(f).  Counsel states this “new law provides that dual status members” such as the applicant, “are to be allowed to remain in service until age 60 and qualifying for an unreduced annuity.”  He states the “requirements of this new law are that a dual status officer must maintain qualifications for the position” which he states the applicant does.

6.  Counsel also notes that the decision of the Army and the Army National Guard will cause great hardship on the applicant stating that even though the applicant could retire from his civil service position, he would not make enough money for him and his family to survive.


CONSIDERATION OF EVIDENCE:

1.  Information available to the Board indicates the applicant was born on 
10 March 1950.  He initially entered military service as a member of the United States Navy in 1969 and served on active duty until he was released in 1975.  He subsequently served as a member of the United States Naval Reserve and in March 1979 enlisted in the Army National Guard.

2.  By May 1980 he had attained the rank of staff sergeant/E-6.  In the summer of 1980 the applicant was granted a waiver of the maximum age requirement to enroll in the Army National Guard Officer Candidate School.  The applicant was age 30 at that time.

3.  On 28 June 1981 the applicant was appointed as a second lieutenant in the Iowa Army National Guard.  In 1985, he transferred to the Alabama Army National Guard and in 1989 he completed 20 qualifying years of service for military retirement purposes.

4.  On 1 November 1994 the applicant was promoted to the rank of major in the Army National Guard and extended Federal Recognition.  His performance evaluation reports since promotion to the rank of major have all been complimentary center or above center of mass reports.

5.  On 8 March 2001 the applicant was notified that he had been selected by a mandatory Department of the Army selection board for promotion to lieutenant colonel with a promotion eligibility date of 6 October 2001.  On 3 April 2001 the applicant elected to delay that promotion until 5 October 2004.  In his election statement he acknowledged he understood that by the end of the approved period of delay he must:

   a.  be promoted into the higher grade if a higher graded position is made available to him.
   
   b.  be transferred to the Individual Ready Reserve and promoted on his Promotion Eligibility Date (PED) if there was no higher graded position available and he desired to be promoted.  Federal recognition would be withdrawn.
   
   c.  choose to decline the promotion at which time his name would be removed from the promotion list and he would be considered to have been not selected for promotion.



6.  By September 2004 the applicant declined the promotion thereby constituting his first promotion selection failure.

7.  In January 2006 the applicant was notified that he had again been selected for promotion to lieutenant colonel by a Department of the Army selection board.  In June 2008 he was informed of a second non-selection.  According to the applicant he declined the second selection as well, although there are no documents in available files which confirm the declination.

8.  On 1 October 2008 the applicant was discharged from the Alabama Army National Guard and transferred to the United States Army Reserve Control Group.  On 2 October 2008 he executed an enlistment contract in the Alabama Army National Guard for a 1 year period in the rank of sergeant/E-5.

9.  Information available to the Board indicates that as of October 2008 the applicant was 58 years old, he had more than 39 years of qualifying service for Reserve military retirement purposes, and 26 years of commissioned service.

10.  The applicant’s technician performance appraisals indicate the applicant exceeded performance standards on an annual appraisal rendered in February 2001 for the applicant’s performance as a computer specialist (GS-0334-11).  Between 2005 and 2008 he exceeded standards as an Info Tech Specialist 
(GS-2210-11).  Appraisals for the years 2002 through 2004 were not provided.  

11.  In the processing of this case, an advisory opinion was provided by the Chief, Personnel Division of the National Guard Bureau.  The opinion recommended denial of the applicant’s request citing regulatory provisions which provided for the separation of an Army National Guard officer after being twice non-selected for promotion to lieutenant colonel.  The advisory opinion did not address the provisions of 10 USC, Section 10216(f).  However, the opinion did note the applicant would be retired in the highest grade held (major) when he began drawing military retired pay at age 60.  

12.  The applicant and his counsel were provided an opportunity to comment on the advisory opinion and on 23 February 2009 the applicant’s counsel responded.  Counsel noted the advisory opinion addressed regulatory provisions for the separation of officers who were twice non-selected for promotion but made no comments regarding the provisions of 10 USC 10216(f).  Counsel reiterated the concerns of the applicant.

13.  National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition – dated 8 September 1978 with Change 4 dated 15 July 1983) states that unless contrary to State law and regulations, the appointment of an Army National Guard officer should be terminated for:

	a.  attainment of maximum age – in general - on the last day of the month in which they attain age 60. 

	b.  completion of maximum service – officer in the grade of lieutenant colonel or below who are not earlier removed from an active status will be removed on the date that is 30 days after completion of 28 total years of service.

14.  The above National Guard Regulation also provides that upon failure of a first lieutenant, captain, or major to be selected for promotion to the next higher grade after second consideration, except as provided in paragraph 6a, the officer will be removed from an active status within 90 days after the selection board submits its report to the convening authority.

15.  “Paragraph 6a,” referred to in the above paragraph provides for retention beyond the mandatory removal date of an officer whose State appointment is to be terminated or whose Federal recognition is to be withdrawn to qualify for retirement for the following reasons:

	a.  the officer who is entitled to be credited with 18 or more years but less than 19 years of qualifying Federal service for retired pay shall be retained to the end of the retirement year during which the officer will be credited with 20 years of satisfactory Federal service unless sooner separated for physical disability, by reason of attaining maximum age, or discharge at officer’s own request.

	b.  on the date prescribed for discharge the officer is entitled to be credited with 19 years or more but less than 20 years of qualifying Federal service for retired pay shall be retained to the end of the retirement year during which he will be credited with 20 years, etc.

16.  Paragraph 6f of National Guard Regulation 635-100 (dated 8 September 1978) provided that Army National Guard Technicians or full-time State employees administering the Army National Guard program may be retained in an active status beyond mandatory removal date, but not beyond age 60 to 
achieve eligibility for an immediate Civil Service retirement annuity (Federal or State), provided they are otherwise fully qualified.  Army National Guard technicians achieve this eligibility with a combination of 20 years creditable service for Civil Service retirement and age 55 under the Civil Service Retirement 


System (CSRS).  Retention under this provision is for those personnel whose eligibility for annuity requires an Army National Guard military status as a basis for continued employment.  Individual must be able to achieve eligibility for an immediate annuity by or before age 60.  The regulation only requires retention in some form of military status.  (It should be noted this regulation is out of date as it applies to retirement under the Federal Employees Retirement System (FERS) which provides for immediate annuity based on an individual’s minimum retirement age with 10 years of service or age 60 with 20 years of service.)

17.  With the introduction of the Reserve Officer Personnel Management Act (ROPMA) in 1996 the mandatory removal date for majors who failed to be selected for promotion to lieutenant colonel for the second time was established as the first day of the month after the month completing 20 years of commissioned service.  It provided for retention of Army National Guard technicians beyond their mandatory retirement date for length of service, but not beyond age 60, in order to qualify for an immediate unreduced Civil Service retirement under CSRS, or for an immediate unreduced FERS annuity.  Technicians become eligible for this annuity with a combination of 20 years creditable service and age 55 under CSRS and 20 years of creditable service and age 60 under FERS.  Individuals must be able to achieve eligibility prior to or upon reaching age 60.

18.  10 USC, Section 10216(f) states that the Secretary of the Army shall implement personnel policies so as to allow a military technician (dual status) who continues to meet the requirements of this section for dual status to continue to serve beyond a mandatory removal date for officers, and any applicable maximum years of service limitation, until the military technician (dual status) reaches age 60 and attains eligibility for an unreduced annuity.

19.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) states that mandatory selection boards will convene each year.  These boards will consider Army National Guard of the United States and U. S. Army Reserve (USAR) officers on the Reserve Active Status List (RASL) for promotion to captain through lieutenant colonel.  They will also consider USAR warrant officers to grades chief warrant officer 3 and chief warrant officer 4 in an active status, not on the active duty list.  These boards will consider officers for promotion without regard to vacancies in the next higher grade.  First consideration for promotion will occur well in advance of the date the officer will complete the time-in-grade (TIG) requirements, as appropriate.  This 


may allow officers in the grades of first lieutenant through major to be promoted on or before their maximum TIG.  The maximum TIG for major to lieutenant colonel is 7 years.

20.  Army Regulation 135-155 states, in pertinent part, that a delay in promotion may be granted for a maximum of three years.

DISCUSSION AND CONCLUSIONS:

1.  Evidence available to the Board indicates the applicant was considered by a Department of the Army mandatory selection board on two separate occasions and in both instances requested a delay in the promotion, presumably because he was not placed in a lieutenant colonel position by the Army National Guard.  When the delay expired without placement in the higher graded position the applicant declined the promotion thereby being declared a non-selection.

2.  While 10 USC, Section 10216(f) provides for a statutory basis to retain unit technicians, that provision has existed in regulatory requirements for several years.  This provision of the law, while permitting the member to continue serving does not require the person to do so as an officer.  Here the law was satisfied by allowing the applicant to complete 20 years as a technician by maintaining eligibility in an enlisted status.

3.  As a matter of law and regulation, the Board does not pay attorney fees.

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 submit evidence that would satisfy the aforementioned requirement.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X__  ___X____  ____X___  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.




      _______ _  X _______   ___
       	   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)                                         AR20080017587



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ABCMR Record of Proceedings (cont)                                         AR20080017587



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