IN THE CASE OF:	  

		BOARD DATE:	    17 February 2010

		DOCKET NUMBER:  AR20090009234 


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 reinstatement into the Active Guard Reserve (AGR) program and assignment back into his former unit.

2.  The applicant states that he was involuntarily separated from the Illinois Army National Guard (ILARNG) after 16 years and 8 months of active service.  His service and job performance had been exemplary and he was recognized throughout the State for his dedication and organization.  However, in early 2004, a Qualitative Retention Board (QRB) convened to review records of Soldiers who had reached 20 years of service for non-regular retirement and he was not selected for retention.  He was ultimately discharged from the military with no appeal process, thus ending a career that was 3 years and 4 months short of 20 years of active service.  He gathered several letters of support from a number of officers in his chain of command and drafted a letter of appeal for The Adjutant General's review.  The Assistant Adjutant General reviewed his request but would not forward it to The Adjutant General.  He feels he was treated unfairly.  

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  a copy of the Nonselection for Continued Unit Participation Memorandum, dated 8 March 2004;

	b.  copies of four character reference letters and/or letters of support from various officers and/or noncommissioned officers (NCOs); 
	c.  a copy of a self-authored memorandum, dated 10 March 2004 and his battalion commander's memorandum, dated 11 March 2004, requesting QRB reconsideration;

	d.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 July 2004; 

	e.  a copy of an unsigned self-authored letter of appreciation, dated 28 April 2004.

	f.  copies of his DA Forms 1059 (Service Academic Evaluation Report), dated 24 June 2003, 10 May 1996, and 7 March 1992; and   

	g.  copies of his DA Forms 2166-7/2166-8 (NCO Evaluation Report) for the periods 200209-200308; 200109-200208; 200009-200108; 199909-200008; 199810-199909; 199709-199808; 199609-199708; 199509-199608; 199409-199508; 199309-199408; 199209-199308; 199009-199108; 199109-199208; 198909-199008; and 198809-198908.

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's records show he was born on 25 September 1952.  He enlisted in the ILARNG on 21 July 1981 and subsequently entered active duty for training (ADT) on 30 October 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 62F (Lifting/Loading Equipment Operator).  He was released from ADT to the control of his ARNG unit on 4 March 1982.   He also served through multiple extensions and/or reenlistments in the ARNG.  


3.  On 8 May 1988, the applicant entered active duty in an AGR status.  He served in various staff and leadership positions in various MOSs, including 76Y (Supply Specialist), 88M (Motor Transport Operator), and 13Z (Field Artillery Sergeant), and attained the rank/grade of master sergeant (MSG)/E-8.  He was assigned to Headquarters and Headquarters Service Battery, 2nd Battalion, 122nd Field Artillery, ILARNG, Chicago, IL, as an operations NCO.

4.  On 8 March 2004, by memorandum, the State of Illinois Adjutant General notified the applicant that he was considered for retention by a QRB but was not selected.  He was also notified that in accordance with applicable regulation, he would be discharged, transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement), or the Retired Reserve in accordance with the option he selected on an endorsement accompanying the memorandum.   A copy of the endorsement is not available for review with this case.

5.  On 10 March 2004, the applicant submitted a request for reconsideration of the QRB results.  His request was strongly endorsed by his battalion commander and several other officers and NCOs.  However, there is no indication in his records of the disposition of his request.

6.  On 7 July 2004, the Department of Military Affairs, ILARNG, published Orders 189-179 directing the applicant's release from AGR status, effective 10 July 2004, with entitlement to separation pay based on 16 years, 8 months, and 16 days of total active service. 

7.  On 10 July 2004, the applicant was honorably released from active duty to the control of his ARNG unit.  The DD Form 214 he was issued shows he completed a total of 16 years, 8 months, and 16 days of creditable active service and 6 years, 3 months, and 16 days of inactive service.  This form also shows he received fully separation pay at a rate of 10 percent based on 16 years, 8 months, and 16 days of total active service.

8.  The applicant submitted the following additional documentary evidence in support of his request:

	a.  Copies of his NCOERs that show he was rated mostly among the best by his raters and superior by his senior raters; 

	b.  Copies of his DA Forms 1059 showing completion of various NCO training courses; and

	c.  Copies of four character reference letters and/or letters of support from various officers and/or NCOs who essentially describe him as one the most loyal, dedicated, and professional NCOs. 

9.  Army Regulation 135-18 (The Active Guard Reserve Program) prescribes the policy and procedures for the administration of the AGR Program.  It provides Army policy for the selection, utilization, and administration of ARNG and USAR Soldiers ordered to active duty.  The objective of the AGR Program is to provide highly qualified officers, warrant officers, and enlisted Soldiers to meet the full-time support requirements for ARNG and USAR projects and programs.  This regulation states, in pertinent part, that the initial tour of AGR duty is 3 years.

10.  Paragraph 4-6 of this regulation states in pertinent part, that the ARNG and USAR have a continuing need to retain the best-qualified Soldiers in the program.  The NGB may conduct qualitative and quantitative tour continuation boards for ARNG officers and enlisted Soldiers on active duty (AD) and Full-time National Guard Duty (FTNGD) prior to the completion of initial or subsequent AGR tour(s).  Enlisted Soldiers will be qualitatively considered for retention in the AGR Program.  ARNG Soldiers serving on FTNGD under Title 32, U.S. Code, are subject to the Qualitative Retention Program prescribed by Army Regulation 135-205 (Enlisted Personnel Management).  Other boards designed to select the best qualified AGR Soldiers in specific grades for subsequent attachments (USAR) or tour continuation (ARNG) in a reduced number of continuing reattachments or reassignments, in the same or higher grade, may be convened, at the discretion of the Chief, NGB (CNGB), or Chief, Army Reserve (CAR) as required.  Such policy may provide that the CNGB convene boards to recommend retention of ARNG AGR officers and enlisted Soldiers who have qualified for a 20-year non-regular retirement under Title 10, U.S. Code, section 1223. 

11.  Officers and enlisted Soldiers who are not disqualified under table 2–5, and satisfy continuation requirements by NGB or OCAR will remain on AD or FTNGD if an appropriate AGR duty position assignment or attachment is available.  The subsequent tour will commence immediately on expiration of the current tour.  Officer and enlisted Soldiers who do not possess the qualifications prescribed or are disqualified will be released from AD or FTNGD, or discharged, according to applicable regulations.  Enlisted Soldiers selected for removal from AGR status by a qualitative board, ARNG Soldiers not recommended for AGR continuation under continuation boards and Soldiers subject to voluntary or involuntary removal from an AGR status will be released from AD or FTNGD, or discharged, according to applicable regulations.  

12.  Army Regulation 135-205 prescribes policies and responsibilities for the Qualitative Retention Program (QRP).  Chapter 2 provides policy governing the selective retention of Soldiers in ARNG units and Army Reserve Troop Program Units (TPU).  It also prescribes the composition and function of the QRB.  

	a.  The purpose of the QRP is to determine retention potential and acceptability for reenlistment or extension of enlistment.  In general, the QRP provides for a review every two years of Reserve Component Soldiers serving in ARNG units and USAR TPUs who have 20 or more years of qualifying service for non-regular retired pay and who are within the zones of consideration.  

	b.  The QRP ensures only the best qualified Soldiers are retained beyond 20 years of qualifying service for non-regular retired pay; provides career incentives; ensures an opportunity for advancement to the higher grades during the peak years of a Soldier’s effectiveness; satisfies the continuing requirement for senior NCOs by the appropriate commands; and provides the command with a tool to control enlisted personnel inventory and manage career progression.  The QRP is not to be used in lieu of separation or removal procedures authorized by other regulations, for reasons such as unsatisfactory performance, unsatisfactory participation, failure to meet body fat standards, and so on.

	c.  State Adjutants General (ARNG) and area commanders (USAR) may convene the QRB consistent with the guidance promulgated by CNGB and CAR in accordance with this regulation during January, February, or March of any given year when the numbers and grades of enlisted Soldiers within the state or territory (ARNG), area command or specific general officer commands subordinate to the area command (USAR), inhibit or deter the objectives of the QRP.

	d.  Soldiers who were not selected for retention in ARNG units or USAR TPUs are considered fully qualified for continued participation in the USAR as assigned IRR Soldiers if they have not reached 60 years of age.  Soldiers not selected for retention will be processed for transfer (ARNG), or reassignment (USAR), according to the option selected and indicated by endorsement to response memorandum.  Soldier may not appeal non-selection for retention by a QRB other than for reason of ineligibility for consideration.

	e.  A Soldier who has not been selected for retention by a QRB will be transferred (ARNG), or reassigned (USAR), to the Retired Reserve or to the IRR depending on the Soldier’s option.  A subsequent reaffiliation with, or reassignment to, a unit is prohibited.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be reinstated back into the AGR program and assigned to his former unit.

2.  The evidence of record shows that the applicant entered the AGR program on 8 May 1988 and served through multiple extensions and/or reenlistments in that program.  On 8 March 2004, he was notified by memorandum that he was considered for retention by a QRB but he was not selected for retention.  He was also notified that in accordance with applicable regulation, he would be discharged, transferred to the USAR Control Group, or the Retired Reserve in accordance with the option he selected on an endorsement accompanying the memorandum. 

3.  The applicant's record is void of the endorsement that would have shown his election.  However, it appears he elected to be discharged as evidenced by his receipt of separation pay based on his total period of active service.  In the absence of evidence to the contrary, it is presumed that he was informed of his option and elected to be discharged. 

4.  Similar to senior enlisted promotion boards, QRBs are not required to divulge the reason for selection or non-selection.  As the letter from The Adjutant General stated, the applicant was fully qualified but not selected.  Regrettably, the regulation does not allow for an appeal of non-selection.  There is neither an error nor an injustice.

5.  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 failed to submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him relief.

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)                                         AR20090009234



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009234



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1