IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100020607 


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:

   a.  an amendment to item 12b (Separation Date This Period) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 April 2006 to show she separated on 1 November 2008;
   
   b.  to be awarded all Active Duty (AD) points she would have earned had she separated on 1 November 2008; and
   
   c.  all due back pay as a result of these corrections. 

2.  She states she was involuntarily separated from the Active Guard Reserve (AGR) program of the Texas Army National Guard (TXARNG) without just cause, and was not provided an administrative board or any other recourse.  In her 
20 years of service, she had never received a negative counseling, reprimand, or any other type of disciplinary action.  

3.  She contends the only reason she was separated from the TXARNG was because she questioned a general officer (GO) on the use of his GO Man-Day (M-Day) hours.  The incident occurred after she was transferred to the Deputy Assistant Adjutant General (AAG) - Army, Support Cell, where her mission included providing administrative business for GOs in the TXARNG.  

4.  During a conversation with Major General (MG) F_____, she questioned him on why he would need to be on AD for 30 days to perform the duties of AAG – Army in the same location he worked as a state employee.  He told her to stay in her lane and within weeks of the incident, she was detailed to the Joint Force Headquarters (JFHQS)-J3 office.  

5.  She also states three weeks after her transfer to the JFHQ-J3 office, her name was placed on the Deployment Mobilization Document (DMD) for Kosovo to fill a newly-created captain (CPT)/O3 billet.  She contends she did everything required to prepare for mobilization, which included an approved family care plan; however, she was later informed by MG F_____ that she did not have a valid family care plan and she would have to retire.  She requested to meet with MG R_____, the State Adjutant General (AG), who in turn stated she could remain in the AGR program as long as she mobilized. 

6.  She contends she informed her supervisor about the conversation between MG R______ and herself, and a few days later she was informed that MG F_____ had ordered her to retire at his own discretion.  She contacted the JFHQ Inspector General (IG) Office pertaining to her situation and her name was removed from the DMD for Kosovo.  

7.  She provided:

* a JFHQS memorandum, dated 23 June 2004
* two Officer Evaluation Reports (OER)
* a pre-deployment family readiness checklist
* her federal recognition orders
* her retirement orders
* a DD Form 214
* a letter from the Department of Defense (DOD) IG, dated 11 June 2007
* a response to the National Guard Bureau (NGB) Advisory Opinion
* a copy of Adjutant General of Texas (AGTX) Regulation 635-100

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.  Her records show she enlisted the Regular Army on 27 September 1985 and was released from active duty (REFRAD) on 26 September 1989 after serving 
4 years of net active service.  She entered AD for the purpose of Active Duty Special Workdays (ADSW) on 16 October 1989 and was released from ADSW on 19 July 1991.  She received a DD Form 214 for this period.  On 20 July 1991, she was appointed as a Reserve Commissioned Officer of the Army under Title 10, U.S. Code 591 and 593, and she continued serving on active duty.  She executed an Oath of Office and was appointed as a Reserve officer in the ARNG, on the same day.  After continuous service in the ARNG, she was promoted to LTC on 27 July 2005 with a date of rank of 19 October 2005.  

3.  She provided two OERs for the periods 1 November 2003 through 31 October 2004, and 1 November 2004 through 30 June 2005.  Both OERs show she received an outstanding rating in the areas of performance and potential by her rater, and was considered to be best qualified by her senior rater. 

4.  Also during this period, a memorandum from JFHQ, AG Department, Subject:  Notification of Approved Active Service Tour Continuation Board (ASTCB) Results, dated 23 June 2004 shows she was approved for a 24-month extension beyond 20 years of active federal service (AFS).  She was given a new Retired Release Date (RRD) of 27 September 2007.

5.  A TXARNG Family Program - Pre-Deployment Family Readiness Checklist, dated 22 March 2005 shows she completed this form in its entirety.  

6.  She also provided TXARNG, Orders 025-1043, dated 25 January 2006.  This document shows she was REFRAD on 30 April 2006 and placed on the retired list on 1 May 2006 in the grade of LTC.  She completed 20 years, 
6 months, and 15 days of active service.    

7.  Item 12b (Separation Date This Period) of her DD Form 214 shows she was transferred to the USAR Control Group (Retired) on 30 April 2006.  Item 12c (Net Active Service This Period) shows she had completed a total of 20 years, 
6 months, and 15 days of active service.  Item 12a (Date Entered AD This Period) shows she entered active duty on 16 October 1989.

8.  Her record contains NGB, SO Number 160 AR, dated 27 June 2006 which shows her Federal Recognition status was withdrawn on 30 April 2006.

9.  A letter from the DOD, IG office, dated 11 June 2007 shows that upon review, her complaint of Whistleblower reprisal did not meet the timely reporting requirements as outlined under Title 10, U.S. Code, Section 1034 and DOD Directive 7050.6 Military Whistleblower Protection.  As a result, no further action would be taken. 

10.  An advisory opinion was obtained on 10 March 2011 from the Chief, Army NGB, Personnel and Policy Readiness Division.  The NGB opined her date of release from the AGR program should be adjusted from 30 April 2006 to 
27 September 2007.  Her Retirement Points History Statement (RPAS) should be revised accordingly and she should receive all benefits, back pay and allowances due as a result of the adjustment.  The state AG concurred with the recommended course of action.

11.  The opinion also states her records went before the ARNG AGR Officer ASTCB which resulted in a 24-month extension beyond 20 years of AFS with a new RRD of 27 September 2007.  National Guard Regulation (NGR) 600-5, section 6-7 states in part, AGR commissioned officers and warrant officers will retire after completing 20 years of AFS unless extended by proper authority.

12.  It was also noted that it did not appear that she was given an opportunity to correct the noted deficiency in the family care plan and as a result, she was involuntarily separated from the TXARNG AGR program on 30 April 2006.  She was also retired without being counseled or receiving a final OER.  NGR 600-5, chapter 6, section 6-5(a), states counseling or a letter of reprimand will be initiated by a commander or supervisor when an individual’s degree of efficiency, manner of performance of duty, military conduct, or the commission of any derogatory act makes such action appropriate.  There is no evidence of counseling.

13.  The opinion also states there appeared to have been irregularities in the separation of the applicant from the AGR program.  NGR 600-5, chapter 6, section 6-1, states the state AG will be the final separation authority for AGR Soldiers and the provisions of Army Regulation 135-18 (The Active Guard Reserve Program), paragraphs 5-1b (1) and 5-1c will also be complied with. 

14.  Army Regulation 135-18, chapter 5, section 5-1(b) and (c), state all separations, voluntary or involuntary, from the AGR program will be governed by the following regulations and applies to ARNG Soldiers released from Full Time National Guard Duty (FTNGD), while serving in the AGR program under the provisions of Title 32 U.S. Code: 

   a.  Army Regulation 135-175 (Separation of Officers) states the reasons for involuntary discharge are for substandard performance of duty; moral or professional dereliction; or failure to meet medical fitness standards.  The reason for the applicant's discharge did not fall within any of these categories.
   
   b.  NGR 600-5 states in order to involuntarily separate a Soldier from the AGR program, the Soldier would first need to be counseled or given a letter of reprimand by the commander.  Once the commander has considered the effects and/or adverse impact the discharge would have on the Soldier, the commander would provide a written recommendation for involuntary separation.  The Soldier will be given 15 days to rebut or comment and return recommendation to the commander who will then forward through the command channels to the state AG.  Paragraph 6-4b states "AGR Soldiers will not be separated under provisions of this paragraph until final approval by the AG."  There is no evidence this occurred.
   
15.  NGR 635-101 (Personnel Separations – Efficiency and Physical Fitness Boards), section II, states the reasons for action to withdraw federal recognition are: substandard performance of duty; moral or professional dereliction; failure to meet medical, physical or mental condition; or in the interest of national security. As discussed in section III of the same regulation, the commander would have to determine that sufficient basis exists.  The Soldier would have to be notified, acknowledge receipt of notification, and be allowed 15 days to elect one of the following options: (1) show cause for retention before a board of officers convened for that purpose (2) submit a resignation in lieu of withdrawal of Federal Recognition or (3) elect transfer to the Retired Service.  Although ordinarily, a separation for cause requires withdrawal of Federal Recognition procedures as stated above, there is no evidence this occurred.

16.  In addition to being separated from the AGR program, she was discharged from the ARNG.  A separation for cause ordinarily requires withdrawal of Federal Recognition procedures as stated in Army Regulation 135-175, chapter 2,  section 2-1, which states in part, "recommendations submitted by an efficiency or physical fitness board convened under Title 32 U.S. Code, Section 323(b) (NGR 635-101) for withdrawal of Federal recognition are approved by the Chief, NGB (CNGB)." 

17.  The CNGB, acting for the Secretary of the Army, will review and approve or disapprove the findings of boards of officers convened by area commanders to determine whether or not Federal Recognition of ARNG officers should be withdrawn because of inefficiency or physical unfitness (NGR 635-101).  The withdrawal of Federal Recognition due to retirement requires that an officer request a withdrawal of Federal Recognition through a retirement memorandum.  There is no documentation that proves the applicant went before the appropriate board or that the appropriate memorandum was prepared.

18.  She provided a rebuttal to the advisory opinion.  She requested her separation date be adjusted from 30 April 2006 to 1 November 2008 as in her original request for the following reasons:

   a.  She contends that even if she had not been retained by the July 2007 ASTCB, her separation date would have been September 2008.  Her personnel records only contain evidence of superior duty performance and qualifications;  
   
   b.  Shortly before her separation she was serving in a field grade command billet and was promoted to LTC.  She was also slated for a battalion command position.  She contends everything came to an abrupt end after her incident with MG F______;
   
   c.  Her Mandatory Release Date (MRD) was projected to occur in 2017 and there is no reason to believe she would not have been permitted to continue to serve up until that date.  She states the TXARNG does not have its required fill of field grade finance officers;   
   
   d.  The facts in the NGB Advisory Opinion point out that she was separated without due process;    

   e.  By adjusting her separation date to 1 November 2008, she would have the required time in grade (TIG) for retirement in the grade of LTC/O5 and be able to attain her highest three years of salary for retired pay;
   
   f.  She was forced to retire within 90 days with no other recourse and as a result, she and her family has been devastated by debt and budget shortfalls; and 
   
   g.  At the time she was forced into retirement, she was only 43 years of age and would have served her country for 11 more years had she been permitted to do so.    

DISCUSSION AND CONCLUSIONS:

1.  Her request for a new separation date of 1 November 2008 was carefully considered and is found to have merit.  

2.  In June 2004, an ASTCB convened and granted her a new RRD of 
27 September 2007.  The NGB advisory opinion recommended an adjusted separation date which was in accordance with her adjusted RRD of 
27 September 2007 and her state AG concurred with this recommendation.  

3.  Notwithstanding the recommendation from the NGB and her state AG's concurrence, it is reasonable to presume that she would have been retained in the AGR program and continued to serve given her MRD of 2017 and the fact that she needed three years TIG to be placed on the Retired list in the grade of LTC/O5. 

4.  In view of the foregoing, she is entitled to have her retired DD Form 214 for the period ending 30 April 2006 amended to show she retired on 31 October 2008 and was placed on the Retired List on 1 November 2008 in the rank of LTC.  She is also entitled to a revised Retirement Points History Statement, any entitlements, benefits, and all due back pay and allowances as a result of this correction. 

5.  It was also noted that item 12a of her DD Form 214 for the period ending     30 April 2006 shows she entered on active duty on 16 October 1989.  However, she had already received a DD Form 214 for the period 16 October 1989 through 19 July 1991.  Therefore, her retirement DD Form 214 should also be corrected to show she entered active duty on 20 July 1991.

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 Department of the Army records of the individual concerned be corrected by as follows:

   a.  amending her DD Form 214 for the period ending 30 April 2006 in item 12a to show she entered active duty on 20 July 1991, in item 12b to show she retired on 31 October 2008, and recalculating items 12c and 12d (Total Prior Active Service) accordingly; 
   
   b.  placing her name on the Retired List on 1 November 2008 in the rank of LTC; 
   
   c.  revising her latest Retirement Points History Statement accordingly; and
   
   d.  paying her all back pay/retired pay, allowances, entitlements and benefits due as a result of these corrections.    




      _______ _   __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)                                         AR20100020607





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ABCMR Record of Proceedings (cont)                                         AR20100020607



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