BOARD DATE:	  February 25, 2010

		DOCKET NUMBER:  AR20090010274 


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, that:

   a.  Calendar Year (CY) 2008 Officer Active Guard Reserve (AGR) Released from Active Duty (REFRAD) /Active Service Management Board (ASMB) should be considered invalid/revoked;
   
   b.  chief warrant officer  five (CW5) is not an controlled grade and he should be retained on the Title 32 AGR Program; and 
   
   c.  if released from the AGR Program that he be released not less that 9 to 
12 months after being demobilized.

2.  The applicant states, in effect, that he is currently serving Afghanistan in support of Operation Enduring Freedom in Mar 2009.  Prior to his deployment he was notified in May 2008 that his records would be considered by the CY 
2008 Officer AGR REFRAD ASMB.  He reviewed his records and turned in the requested documents on 22 July 2008.  On 9 September 2008, the applicant received an e-mail from a fellow CW5 also being evaluated by the board.  The fellow CW5 stated that the board recorder had requested a copy of his DD Form 1059 (Service School Academic Evaluation Report) and certificate.  The applicant was stunned that the board recorder had contacted the fellow CW5 and not him personally.  However, the applicant sent the documents as requested.


3.  The applicant states that he later found out that he was not recommended for retention and the fellow CW5 was recommended for continuation.  The applicant states in accordance with (IAW) CY 2008 Officer AGR REFRAD ASMB Guidance National Guard Bureau (NGB-ARH) Policy Memorandum Number 08-03 states that a Soldier being considered by the board will not serve as a board member or have any connection to the board process.  The applicant states by the board recorder asking for documents from him through the fellow CW5 violated the policy/instructions.  \

4.  The applicant further states that the Adjutant General (AG) from the Puerto Rico Army National Guard (AG PRARNG) submitted a request to the Chief, National Guard Bureau (NGB) to recall the approved results of the CY 
2008 Officer AGR REFRAD ASMB.  The AG, PRARNG cited an increase in AGR authorization and no immediate need to shape the AGR force through the release of the AGR Soldiers as justification for his request.  The applicant states that besides CW5 not being a control grade and the procedures not being followed IAW NGB-ARH Policy Memorandum Number 08-03 he should be retained on the AGR Program.

5.  The applicant provides two DA Forms 1559 (Inspector General Action Request) with dates 23 October 2008 and 7 November 2008; and an memorandum from the Puerto Rico Army National Guard (PRARNG), dated 
13 May 2008. 

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service in the U.S. Army Reserve (USAR) and the PRARNG.  He was appointed as a Warrant Officer of the Reserve in the grade of warrant officer one (WO1) on 16 April 1987, as a helicopter pilot.  He was promoted to the grade of CW5 on 1 July 2006.

2.  By memorandum, dated 13 May 2008, from the PRARNG the applicant was notified that his records would considered by the CY 2008 ARNG Officer AGR REFRAD Board/ASMB.  He was instructed to provide documents required by the board.  The instruction further stated NGB/States were required to meet selection objectives and be at or below control grade allocation and that, an AGR Soldier selected for release may request to revert to traditional status, retire, or apply for other non-AGR full time National Guard positions.

3.  On 10 September 2008, the CY 2008 ARNG Officer AGR REFRAD Board/ASMB convened.  The board recommended that the applicant and other officers be released from Title 32 AGR Program.  The recommendation was later approved by the AG, PRARNG and forwarded to the Chief, National Guard Bureau (NGB) for approval.

4.  By DA Form 1559, dated 23 October 2008, the applicant requested action be taken by the PRARNG Inspector General (IG) to investigate the possible improper conduct and possible violation of the privacy act of the CY 2008 ARNG Officer AGR REFRAD Board/ASMB.  The applicant reiterated he received an e-mail from a fellow CW5 also being evaluated by the board.  The fellow CW5 stated that the board recorder had requested documents.  The applicant further stated that the board did not recommend him for retention and it came to his attention that the fellow CW5 was recommended continuance by the board.

5.  By memorandum, dated 29 October 2008, from the Chief, Assistance Division, NGB, Office of the Inspector General (NGB-IG) in responding to the applicant’s board complaint.  The Chief, Assistance Division stated that an inquiry determined the applicant had an open case with the PRARNG IG.  He should continue to work with them and that the PRARNG was the appropriate agency to address his concerns.  The Chief, Assistance Division further stated that the NGB-IG found no violation of regulation or standard.  The results of the inquiry had disclosed no basis for further action and the case was closed.

6.  By DA Form 1559, dated 7 November 2008, the applicant again requested action be taken by the PRARNG IG to investigate his previous complaints of possible improper conduct and possible violation of the privacy act.  In addition, to a new investigation of the CY 2008 ARNG Officer AGR REFRAD Board/ASMB for not following the board procedures IAW NGB-AHP Policy Memorandum Number 08-03.  The applicant stated “A SOLDIER BEING CONSIDERED BY THE BOARD WILL NOT SERVE AS BOARD MEMBER OF THE BOARD OR HAVE ANY CONNECTION TO THE BOARD PROCESS.”  The applicant further stated in his previous IG action request to both the PRARNG IG and NGB-IG and that both cases were closed without basis for further action.

7.  By email, dated 10 November 2008, shows the State IG notified the applicant that he had received the NGB-AHP Policy Memorandum Number 08-03.  The State IG stated, “I requested the procedures to declare this board invalid based on the information you provided below.”  It appears the request was sent to the AG PRARNG.   

8.  By memorandum, dated 22 December 2008, the Chief, NGB approved the CY 2008 ARNG Officer AGR REFRAD Board/ASMB conducted by the PRARNG.


9.  By memorandum, dated 8 January 2009 from the [newly-appointed] AG PRARNG to the Chief, NGB shows that the AG PRARNG requested a Recall/Revoke of the CY 2008 ARNG Officer AGR REFRAD Board/ASMB.  The AG stated after closely looking at the force there was no control grade situation or need to shape the AGR progression for other AGR officers.

10.  The AG stated as he took charge, he saw no immediate AGR force management issue that significantly impacted the operation capability of the PRARNG which merited the conduct of the September 2008 ASMB.  The AG further stated that the board selected for release top quality AGR officers that he considered mission essential and indispensable members of his staff. 

11.  The AG further stated although the former Chief, NGB directed the use of AGR REFRAD board to consider eligible Title 32 AGR officers from release of the program, only 24 out 54 states/territories opted to convene boards.  When the decision was made to conduct the CY 2008 ARNG Officer AGR REFRAD Board/ASMB, the PRARNG had not received the Fiscal Year (FY) Army Manpower Resource Voucher.  The same was received on October 2008 and reflected an increase of 167 authorizations programmed in the President’s budget.

12.  On 11 March 2009, the applicant applied to the ABCMR to correct his records due to being released from the AGR Program from the results of the 
CY 2008 ARNG Officer AGR REFRAD Board/ASMB.  

13.  On 14 March 2009, the applicant was ordered to active duty in support of Operation Enduring Freedom for a period of active duty no to exceed 400 days.

14.  By memorandum, dated 5 May 2009, from the Chief, NGB to the AG PRARNG.  The Chief, NGB stated that there was no viable option to revoke the CY 2008 ARNG Officer AGR REFRAD Board/ASMB results.  “Indeed, to pursue such a course of action would undermine the credibility of the board process and put at risk the integrity of the process.  Accordingly, I must stand by my original response to you dated 26 February 2009.”

15.  The Chief, NGB further stated that his staff had identified an option that can mitigate this issue.  AGR Soldiers selected for REFRAD by the ASMB may elect to revert to traditional status rather than retire.




16.  By memorandum, dated 22 May 2009, from the Chief, Personnel Division, NGB shows that the applicant contacted the Personnel Division on 1 May 
2009 and requested to withdraw his application for correction of his records.  The Chief, Personnel Division stated that the applicant indicated that the PRARNG was taking the necessary corrective actions.   

17.  By memorandum, dated 2 June 2009, the applicant was officially notified that he was selected to be released from the AGR Program from the results of the CY 
2008 ARNG Officer AGR REFRAD Board/ASMB.  The applicant was informed that a Soldier who is selected for release would be released from the AGR Program no less than 9 months up to 12 months or upon attaining 20 years of active service whichever is later not to exceed mandatory removal date.  The applicant was given 30 days of receipt of the memorandum of his decision based on options presented in the memorandum. 

18.  During the processing of this case an advisory opinion was obtained from the Chief, Personnel Division, NGB recommended disapproval of the applicant request to invalidated the CY 2008 ARNG Officer AGR REFRAD Board/ASMB results and be retained for continued service in the AGR Program.  The Chief, Personnel Division stated there was no indication in the evidence of record of an error or misconduct by the CY 2008 ARNG Officer AGR REFRAD Board/ASMB that justifies invalidating the board findings. 

19.  The Chief, Personnel Division stated that the CY 2008 ARNG Officer AGR REFRAD Board/ASMB recorder incorrectly contacted the other CW5 being considered by the board to pass a message to the applicant about documents requested by the board.  It was inappropriate and unnecessary to involve any other officers being considered by the board in any request for information about the applicant.  The other CW5 involved was not a board member and there is no allegation of any board member having any communication with anyone outside of the board.  All communication was with the board recorder, so there is not a violation of paragraph 7j of the NGB-AHP Memorandum of Instruction, dated 
24 April 2008.  The instructions state in pertinent part, “Except as discussed in Annex B, do not communicate with anyone except a recorder or my designated representative concerning the board.”

20.  The Chief, Personnel Division states the applicant’s contention that the communication through the other CW5 was in violation of paragraph 7j of NGB-AHP Policy Memorandum Number 08-03.  However, the policy memorandum states in pertinent part, “A Soldier being considered by the board will not serve as a member of the board or have any connection to the board process.”  Although the board recorder communicated through the other CW5 to the applicant, the evidence of record does not support the claim that the other CW5 had any communication directly with the board or influenced the board in regards to the applicant.  There was clearly a process error when the board recorder contacted the other CW5.  However, the error did not rise to the level of material error that would justify the invalidation of the CY 2008 ARNG Officer AGR REFRAD Board/ASMB findings.

21.  The Chief, Personnel Division states the applicant’s contention that he was not in a control grade position.  The Chief, Personnel Division states, “He is correct in his assertion that the REFRAD/ASMB is used to reduce the over strength condition in control grade positions, however, the AG may also use the process to manage the AGR force in the State.  The REFRAD/ASMB is a tool to ensure there is optimal AGR career progression and shape an effective fighting force.  NGB-ARH Policy memo number 08-03, paragraph 6a states in pertinent part.  “NGB or the State/Territory must conduct a board if they exceed their control grade allocation, otherwise the Director Army National Guard/Adjutant General may conduct a board to shape the force career progression and the management of qualified AGR Soldiers.”

22.  The advisory opinion was provided to the applicant for comment or rebuttal.  The applicant replied to the advisory opinion by stating the NGB-AHP Policy Memorandum Number 08-03 was not followed in three items:

	a.  Paragraph 7j “A Soldier being considered by the board will not serve as a member of the board or have any connection with the board process.”  The other CW5 being evaluated by the board was contacted by the recorder requesting documents from me that were not listed as required in the original letter of instruction from HRO.  Calls his attention why he was not contacted for the documents and also that he was recommended for retention and he was not;

	b.  Paragraph 8d (9) “Notify all mobilized Soldiers selected for release within 30 days of their demobilization;” and 

	c.  Paragraph 10d “Mobilized Soldiers will be notified if selected for release from the AGR Program, within 30 days of REFRAD from mobilized status.  Unless expressly waived, Soldiers will be released from the AGR Program no less than 9 months not to exceed 12 months from the REFRAD,”  How a Soldier mobilized to theater are feel and can concentrate in mission if received a letter saying that when returning home will not have a job.  Also is an extreme impact to family when the love one is away from home serving our country and they think that the reward you receive from being mobilized to theater is losing the job.


23.  The applicant states in the advisory opinion from National Guard Bureau dated 21 August 2009 item 6 says: ”On 9 January 2009 the newly appointed Adjutant General of the PRARNG submitted a request to the Chief, NGB to recall the approved results of the 2008 REFREAD/ASMB.  The TAG cites an increase in AGR authorizations and no immediate need to shape the AGR force through the release of AGR soldiers (sic) as justification for his AGR program” (sic).  The applicant concludes that besides being CW5 not being a control grade and the procedures not being followed IAW NGB-AHP Policy Memorandum Number 
08-03, there is no need or reason to be released from the AGR Program.

24.  NGB-ARH Policy Memorandum Number 08-03 – Calendar Year 2008 Army National Guard Active Guard Reserve/Active Service Management Boards Guidance, prescribes guidance to members of the board with the task of selecting AGR officers who should be released from the Title 32 AGR Program.  Paragraph 7j states a Soldier being considered by the board will not serve as a member of the board or have any connection to the board process.  

25.  Paragraph 8d(8) states notify Soldiers of selection/non-selection no later than 30 days after the board results are approved.  Paragraph 8d(9) states notify all mobilized Soldiers selected for release within 30 days of their demobilization.  Paragraph 10d states mobilized Soldiers will be notified if selected for release from the AGR Program within 30 days of REFRAD from mobilized status.  Unless expressly waived, Soldiers will be released from the AGR no later than 
9 months and not to exceed 12 months from REFRAD.

26.  NGB-ARH Memorandum of Instructions – Calendar Year 2008 Army National Guard Active Guard Reserve/Active Service Management Boards, prescribes instructions to members of the board from the Chief, NGB with the task of selecting AGR officers who should be released from the Title 32 AGR Program.  Paragraph 7j states, “Except as discussed in Annex B, do not communicate with anyone except a recorder or my designated representative concerning this board.  After you sign the board report and it is submitted to NGB (NGB-ARH), board members are authorized to discuss board proceedings with the DARNG or his representatives prior to recess.  You will not disclose specifics pertaining to the selection or non-selection of individuals during such a discussion.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the CY 2008 Officer AGR REFRAD ASMB should be considered invalid/revoked and that he be retained on the Title 32 AGR Program.  
2.  Evidence of record shows the CY 2008 Officer AGR REFRAD ASMB recorder erred by contacting the other CW5 being considered by the board to pass a message to the applicant about documents requested by the board.  However, there is no evidence that this error was detrimental to the applicant, had any impact on the board’s finding, or that the other CW5 had any communication directly with the board or influenced the board in regard to the applicant.  

3.  Evidence further shows that the applicant's IG Action Requests failed to substantiate his claims and the IG cases were closed.  Although the board recorder’s judgment was poor, the error did not rise to the level of material error that would justify invalidation of the CY 2008 Officer AGR REFRAD ASMB findings.

4.  The applicant contends that CW5 is not a control grade and that he should be retained on the Title 32 AGR Program.  However, the CY 2008 Officer AGR REFRAD ASMB was conducted to retain the best qualified officers and warrant officers on the AGR Program.  Unfortunately, due to the board's review of the applicant's records he was selected to be released from the AGR Program.  Although the applicant is being involuntarily released he may elect to revert to traditional drilling status rather than retire or reapply to the AGR Program at a future date.

5.  On 14 March 2009, the applicant was ordered to active duty in support of Operation Enduring Freedom.  On 2 June 2009, he was officially notified of the board results while mobilized.  However, paragraph 10d of NGB-AHP Policy Memorandum Number 08-03 states, “Mobilized Soldiers will be notified if selected for release from the AGR Program, within 30 days of REFRAD from mobilized status.  Unless expressly waived, Soldiers will be released from the AGR Program no less than 9 months not to exceed 12 months from the REFRAD.  Therefore, it is recommended the applicant be released from the AGR Program no less than 9 months not to exceed 12 months after his REFRAD mobilization status (i.e. final physical, transitional leave, out-processing, permissive temporary duty).

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the State Army National Guard Records and all Department of the Army records of the individual concerned be corrected by releasing the applicant from the AGR Program no less than 9 months not to exceed 12 months after his REFRAD mobilization status.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to invalidating/revoking the CY 2008 Officer AGR REFRAD ASMB and retaining him on the Title 32 AGR Program due to CW5 not being a control grade.




      _______ _   _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)                                         AR20090010274



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ABCMR Record of Proceedings (cont)                                         AR20090010274



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