IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100017487 


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, through a Court remand, reconsideration of his earlier request for reinstatement in an Active Guard Reserve (AGR) status, promotion to lieutenant colonel (LTC), and transfer to the Oregon Army National Guard (ORARNG).  He also requests back pay for service as an LTC back to 2002, the date he should have been promoted.  

2.  The applicant states that it was unfair to force him to retire under the retirement rules that applied to the AGR officers because the rules that applied to active duty officers allowed majors (MAJ) to serve longer before being forced to retire.  He also states that his performance was excellent as evidenced by his early selection for promotion to LTC by a promotion board before he retired.  He adds that before he retired, the ARNG started relaxing its rules regarding extending AGR officers beyond their mandatory retirement after 20 years of service.  He also states that he was diagnosed with diabetes while he was an AGR officer and because of this, it was wrong not to grant his extension request.  He also argues that the ARNG started him on a medical evaluation board (MEB) in 2002 which delayed the processing of his extension request. 

3.  The applicant provides two academic research papers by students attending the U.S. Army War College.  He also cites a previous decision, pertaining to another applicant, rendered by the Army Board for Correction of Military Records (ABCMR) on 21 December 2004.


4.  The applicant’s request for reinstatement as an AGR officer, promotion to LTC, and transfer to the ORARNG to complete his career was considered and denied by the ABCMR on 31 August 2006.  The applicant did not request reconsideration. 

5.  On 17 June 2010, the applicant entered a consent motion for a voluntary remand to the ABCMR for further administrative action.  As it was not explicitly clear that the applicant raised the issue of his extension in his original application, the ABCMR did not fully explain why the ARNG's alleged inaction on his extension request was not an error, injustice, or inequity supporting the relief he sought.  He therefore agreed, and the Government consented, that remand to the ABCMR is appropriate so that the Board can further analyze the limited issue of whether the ARNG failed to timely act upon his extension request, and if so, whether such failure is in error, an injustice, or an inequity supporting the relief he sought.  The U. S. District Court for the District of Columbia, on 21 June 2010 ordered the applicant's motion to remand be granted and the case be returned to the ABCMR for further consideration.  On remand, the Court further stated the ABCMR would not consider any other arguments the applicant raises.  

6.  On 24 August 2010, counsel submitted the following additional documentary evidence:

* A copy of the previously-submitted Consent Remand Order
* Email exchange with the Army's Litigation Division
* Supplementary Statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Promotion memorandum
* DA Form 3349 (Physical Profile)
* DA Forms 67-9 (Officer Evaluation Report) for the periods 19990601 through 20000531, 20000601 through 20000909, 20001024 through 20011011, and 19980726 through 19990606
* Email exchange with an individual at a hospital
* A memorandum, dated 20 April 2004, from the ORARNG Acting Adjutant General
* Previous ABCMR Record of Proceedings AR2004106642
* Two academic research papers
* A previous ABCMR adjudicated case pertaining to another applicant

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20050013253, dated 31 August 2006. 
2.  Having had prior enlisted service, the applicant’s records show he was appointed as a second lieutenant, Signal Corps, in the ORARNG, and executed an oath of office on 28 December 1982.  He was promoted to first lieutenant on 20 December 1985. 

3.  On 3 January 1986, he entered active duty and on 7 August 1987, while on active duty, he was honorably released from the ARNG and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He was subsequently promoted to captain (CPT) 1 November 1988.

4.  On 3 August 1993, he was honorably released from active duty under the 1993 Early Release Program - Voluntary Separation Incentive.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 7 years, 7 months, and 1 day of creditable active service.  

5.  Subsequent to his release from active duty, he was again assigned to the USAR Control Group (Reinforcement).  On 30 September 1993, he was appointed as a CPT in the ORARNG.

6.  On 6 October 1994, he was ordered to active duty in AGR status with the ARNG.  

7.  On 14 March 1995, by memorandum, he was notified that he was considered but he was not selected for promotion to MAJ by the 1995 Reserve Components Selection Board (RCSB).

8.  On 21 February 1997, after having been selected for promotion by the 1996 RCSB, he was promoted to MAJ.

9.  On 9 June 1999, he received his Notification of Eligibility for Retired Pay at Age 60 letter (his 20-year letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

10.  On an unknown date in 2002, having served 20 years of active Federal service (AFS), the applicant submitted a request for voluntary retirement.  His request would be approved by his chain of command.  

11.  On 23 July 2002, the National Guard Bureau (NGB) published Orders 204-9 directing his retirement from active duty on 31 August 2002, the withdrawal of his Federal recognition, and placement on the retired list effective 1 September 2002.

12.  He was honorably retired from active duty on 31 August 2002 and he was placed on the retired list in his retired rank of MAJ on 1 September 2002.  The DD Form 214 he was issued shows he completed 20 years, 1 month, and 24 days of creditable active service.

13.  There is no evidence in the available records that shows he submitted a request to extend his AGR tour or that a request entered military channels or that it was received by the NGB.

14.  The applicant submitted a copy of an email, dated 30 July 2002 from a personnel staff officer at the NGB, which indicates he was preparing an extension package and that the Chief of the NGB had authority to grant an extension.  However, there is no indication the applicant filed the application. 

15.  On 4 February 2003, by memorandum, he was notified that he had been selected by the LTC RCSB that convened on 4 September 2002 and that the effective date of his promotion would be either of the following dates:

* 20 February 2004
* Date Federal recognition is extended in the higher grade; or
* Date following the date Federal recognition is terminated in current Reserve grade

However, having been retired and removed from an active status before the promotion was finalized (i.e. the promotion memorandum was issued), his promotion selection was declared null and void, as required by Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) and by statute.

16.  On 20 April 2004, nearly 25 months after he had been retired, by memorandum addressed to the Chief, NGB (CNGB), the Acting Adjutant General, ORARNG, stated the following:

This is to inform you that if [Applicant] is reinstated to active duty he will have a slot in Oregon.  [Applicant] is in the process of requesting reinstatement to active duty.  One of the stipulations for reinstatement is to have a slot in Oregon he can fill if his appeal is acted upon favorably.

17.  There is no indication in the applicant's records if this request was forwarded to the NGB or if the NGB received it or responded to it.



18.  He submits the following documents:

	a.  An academic research paper dated 15 March 2006 by a student attending the U.S. Army War College who opines that ARNG retention boards should be revised so the AGR life cycle management process is given to the State Adjutant General in totality in view of the current operational tempo. 

	b.  An academic research paper by another student attending the U.S. Army War College who opines that there is a need to develop a predictable, systematic process for life cycle management of AGR officers up to their mandatory removal date (MRD) and that his research paper proposes some policies to effectively retain AGR officers up to their MRD. 

	c.  A supplemental statement wherein the applicant's counsel states the ABCMR will consider the applicant's original and new application, counsel's brief, and three additional documents.  He follows that with a chronicle of the applicant's background, military service, entry into the AGR program, and what he perceived as involuntary retirement.  He also touches on the applicant's diabetes and the fact that he was never found unfit for duty.  He also states that the applicant submitted a request to extend his active Federal service (but does not produce a copy of this request) and that instead of processing his request, the NGB directed his processing for disability retirement.  This was done despite the lack of any indication that the applicant failed to meet medical fitness standards.  In July 2002, his disability case was referred to an Army Hospital at Fort Jackson, SC, but the PEB liaison officer determined the applicant did not need to undergo an MEB and notified the applicant accordingly.  By this time, it was too late as the applicant's MRD of 31 August 2002 was imminent.  In a way, the useless MEB process not only denied him the opportunity to have his extension approved but also the opportunity to be promoted after having been selected for promotion but later removed.  The ABCMR, having failed to respond to his initial argument, should now address the applicant's claims of setting aside his involuntary retirement, reinstatement into the AGR program, and promotion to LTC/O-5. 

	d.  A copy of a DA Form 3349 (Physical Profile), dated 10 May 1986, showing restrictions related to running over one mile and deep knee bend activities. 

	e.  DA Forms 67-9 for the periods 19990601 through 20000531 (Best Qualified/Above Center Mass), 20000601 through 20000909 (Best Qualified/Above Center Mass), 20001024 through 20011011 (Best Qualified/Above Center Mass), and 19980726 through 19990606 (Above Center Mass/Best Qualified).

	f.  Email exchange, dated August 2002, wherein his PEB liaison officer at the Fort Jackson hospital stated he did not need an MEB.

	g.  Email exchange with another officer regarding the Oregon TAG's intent to bring the applicant back to OR in an AGR status and that the applicant would start working his packet to forward to the NGB.  This is the 30 July 2002 email from the NGB which also indicates the applicant's package was not yet submitted.

	h.  His original Record of Proceedings wherein he requested but was denied reinstatement into the AGR, promotion to LTC, and transfer to the ORARNG to complete his career. 

	i.  A U.S. Army War College Strategy Research project wherein the author discusses revising ARNG officer retention boards.  Of note, this article discusses changes to the NGR retention policy for officers with 20 years of service and, from 1996 to 2006, 95% of such requests were approved. 

	j.  A U.S. Army War College Strategy Research project wherein the author discusses service longevity for Army reserve AGR officers.  Of note, counsel points out that the extension policies in place had the effect of requiring officers to retire at 20 years of service and thereby miss the chance to compete for LTC without an extension.  This article also advocated for extension to AFS to be an automatic consideration by a board instead of a requirement for individual requests by the officer. 

	k.  A previous ABCMR adjudicated case, dated 21 December 2004, wherein the Board granted relief by recommending an AGR officer be extended to attain sufficient time for retirement.  In that decision, an AGR officer requested an extension of his MRD in order to reach sanctuary and lock-in for a 20-year immediate retirement upon completion of 20 years of AFS.  The Board granted that applicant relief in that it recommended extension of his MRD to 20 years so he could retire. 

19.  Army Regulation 600-8-24 (Officer Transfers or Discharges) prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more. Chapter 6 applies to non-disability retirement of active duty list commissioned and warrant officers on active duty to include AGR commissioned officers who have 20 years or more of AFS. Voluntary retirement requests may be submitted up to 12 months before the requested retirement date and not later than 4 months prior to the projected start date of transition leave. The officer must have 19 or more years AFS and be able to complete all service obligations by the retirement date.
20.  Army Regulation 135-18 (AGR Program) establishes policies and prescribes procedures for obtaining, administering, and separating ARNG and USAR Soldiers serving as members of the AGR Program.  The regulation in effect at the time (19 June 1996):

	a.  Paragraph 2-4 states after initially entering or reentering the AGR program, and while serving on AD or FTNGD, a Soldier may be considered for continuation and subsequent duty in the AGR program based on the needs of the ARNG or USAR.  A subsequent tour of duty in the AGR will be denied if the Soldier has a waivable disqualification unless the disqualification is waived by the appropriate authority.  Additionally, a subsequent tour of duty in the AGR will be denied if the Soldier has a non-waivable disqualification. 

	b.  Paragraph 4-11 (Retention and Continuation in the Program) states all AGR officer personnel will be released from AD or FTNGD when they have attained 20 years and 1 month of qualifying service for retirement purposes under 10 USC 3911 or 10 USC 1293 unless they have been approved for voluntary retention under Army Regulation 600-8-24.  NGB and OCAR will establish procedures for selecting officers for retention after completing 20 years of active military service when the needs of the Service dictate.  For the purpose of this paragraph, “active military service” will be the sum of any service on AD, ADT, and full–time duty under 32 USC 502–505, for which they were entitled to pay from the United States, including FTNGD under 32 USC 502(f) (2) in the AGR Program.  AGR officers and warrant officers may request retention on AD or FTNGD in the AGR Program after they have completed 20 years of military service qualifying for retirement under 10 USC 3911.  Requests will be submitted when the Soldier completes 19 years of such service.  The requests will be sent through command channels to the CNGB, Arlington, VA for ARNG Soldiers and OCAR, Washington, DC, for USAR Soldiers. 

21.  In a memorandum dated 1 September 2005, the Acting ASA (M&RA) notified the DCS, G-1, the CAR, and the CNGB that effective immediately, he was suspending the policy that released AGR officers from active duty when they attained 20 years of active service.  In the memorandum, the ASA (M&RA) stated that in approving the suspension of the policy that releases USAR AGR officers from active duty when they attain 20 years of active service it permits the ARNG and USAR to manage their AGR officer force to officers' MRD.  Additionally, he approved the implementation of the new Army Reserve AGR Lifecycle Management Process which ensures retention of the best qualified Army Reserve AGR officers, while providing them an opportunity to serve to their MRD. 


22.  In the memorandum, the Acting ASA (M&RA) directed suspension of the Army Reserve Active Service Extension Board for Army Reserve AGR officers, he approved the implementation of Release from Active Duty Board for Army Reserve AGR officers to manage officer grade imbalances or strength overages that may occur in the future, and he directed that the Army G-1 submit the following legislative changes:  (1) a repeal of the statutory requirements for AGR officers to be serving in positions of the next higher grade; (2) an amendment to permit the promotion of AGR officers by sequence numbers; and (3) if needed, a request for a temporary increase in AGR end strength and strength-in-grade limits prescribed by Congress.  The Acting ASA (M&RA) authorized the NGB to prepare an implementation plan to manage their AGR officers to MRD; however, he retained the authority to approve the plan prior to its implementation.

23.  On 3 November 2005, the Principal Deputy ASA (M&RA) notified the DCS, G-1, the Chief, CAR, and CNGB that officers who were previously non-selected by the Calendar Year (CY) 2004 Active Service Extension Board may apply through their chain of command to remain on AD for operational reasons and that, if approved, officers would be managed to their MRD, subject to future force shaping to include AGR Release from Active Duty boards.  The suspense for submission was extended from 1 October 2005 to 1 February 2006.

24.  On 23 November 2005 the Director, Army Reserve Active Duty Management Directorate notified the CY 2004 Active Service Extension Board of an Active Service Operational Implementation.  The memorandum indicates that commanders of officers not extended by the CY 2004 Extension Board may voluntarily request consideration for an operational extension for the non-extended officer and the recommendations for operational extension would be based on the needs of the Army Reserve.  The memorandum also indicates that it was anticipated that there would be few requirements at senior officer grades in most specialties; that officers not requesting or who are not recommended for approval of an operational extension should plan to retire based on their current retirement or removal date; and that assessments for recommendations were based on the current needs of an officer's specialty rather than the position currently occupied.

25.  Army Regulation 135-155 states to be eligible for selection, an ARNG or USAR officer who meets the eligibility requirements must be properly in an active status and participating satisfactorily in Reserve training. 

26.  Title 10, U.S. Code, section 14004 states that, except as otherwise provided by law, an officer must be on a reserve active-status list to be eligible for consideration for selection for promotion or for promotion.

27.  Army Regulation 135-155 also specifies that if an officer is determined to be ineligible for promotion because he/she was removed from an active status before the promotion was finalized (promotion memorandum issued), the Commander, Office of Promotions, Reserve Components, HRC – St. Louis, will declare the promotion selection null and void and a promotion memorandum will not be issued.  A Reserve or ARNG officer on transfer to the Retired Reserve will be transferred in the highest grade in which he/she served satisfactorily.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant entered active duty in an AGR status on 4 November 1994 and attained 20 years of AFS on 31 August 2002.  The regulation in effect at the time mandated his release from active duty unless he was retained beyond 20 years by a retention board process.  The applicant voluntarily applied for retirement.

2.  With respect to the extension issue, there is no evidence in his records and he did not provide any evidence that he requested retention in the AGR program prior to his retirement.  In fact, the evidence shows that, as late as 30 July 2002, the applicant had not forwarded a package to the NGB office responsible for granting extensions.  

3.  With respect to the MEB issue, the applicant's medical records are not available for review with this case.  Nevertheless, his referral to an MEB would not have affected his ability to request an extension from the NGB.  The emails provided by the applicant show the NGB was still waiting for his package and was ready to process it once the MMRB results were announced.  In fact, the   30 July 2002 email indicates the NGB in the past obtained approval pending the results of another officer's MMRB.  Had such a request been submitted earlier, it appears the NGB could have had it approved with a waiver or pending the MMRB.  Hence, the applicant's MEB had no impact on his ability to submit an extension request and did not prevent him from submitting a request much earlier.  When the patient affairs officer responded on 23 August 2002 that the applicant was fit, the NGB would have had time to complete the package.

4.  Nearly 25 months after his retirement, by memorandum, the State Acting Adjutant General informed the CNGB that the applicant would have a slot in ORARNG if his reinstatement request was approved.  However, there is no evidence in the applicant's records that this request, having been submitted after he had retired, was received or acted upon by NGB officials.  Additionally, he was not affected by any of the changes directed by the CNGB in 2005 because he had already been retired. 

5.  With respect to the research papers he submitted, the research papers authored by various individuals at the War College were noted.  While the author notes that between 1995 and 2006 95% of the extension requests were approved, this does not provide a basis for equitable relief.  Again, the record contains no proof the applicant actually submitted an extension request.  Even if he had, there is no evidence it was submitted early enough to allow the NGB to process it prior to his retirement.  If he did, after the 30 July 2002 communication from the NGB, he does not indicate when and whether he did so (assuming it was submitted) in time for the NGB to process it. 

6.  The evidence does not support applicant's contention that the Army unfairly treated his application or that because of such treatment an equitable remedy is in order.  He played a large role in the timing of his extension request.  Assuming he did submit a request for an extension and it could not be processed before he retired, the delay in submitting the request was of his doing, and he cannot complain now that he is due relief because his voluntary retirement was not delayed.    

7.  With respect to the earlier ABCMR decision, the previous decision rendered by the ABCMR on 21 December 2004 is noted.  However, ABCMR decisions do not set or establish precedence because each case is considered on its own merits.  Further, the facts and circumstances of that case differ from the applicant's claim as it involved a request to extend in order to earn enough time for a regular retirement.  Here, the applicant had already attained retirement eligibility.  The equitable remedy in that case therefore rested on far different considerations. 

8.  With respect to his transfer to the Ready Reserve or the ARNG, his release from active duty and transfer to the Retired Reserve on 31 August 2002 was based on his voluntary request to retire.  Therefore, since his release from an active status and retirement were based on his request he is not entitled to transfer from the Retired Reserve to the Ready Reserve or the ARNG.

9.  With respect to his promotion, he was selected for promotion to LTC by the 2002 RCSB which was approved by the President on 13 January 2003.  Since he transferred to the Retired Reserve prior to the approval date of this board, by regulation and by law, his promotion selection was declared null and void.  Therefore, he is not eligible for promotion to LTC because he was not in an active status when the board was approved and he does not have a basis for promotion based on the selection.  Having not been eligible for promotion and having not served since his retirement, logically, he is not entitled to back pay. 


BOARD VOTE:

____X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 to amend the decision of the ABCMR set forth in Docket Number AR20050013253, dated 31 August 2006.



      _______ _   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)                                         AR20100017487



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ABCMR Record of Proceedings (cont)                                         AR20100017487



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