IN THE CASE OF:	  

		BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110004587 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, through a court remand, reconsideration of the applicant's prior requests to be restored to active service in the Active Guard Reserve (AGR) Program with back pay and allowances.

2.  Counsel states the applicant's claims warrant a more comprehensive analysis by the Army Board for Correction of Military Records (ABCMR), specifically:

* whether, under the terms of the 2004 version of Army Regulation 135-18, the applicant's records should have been considered by a continuation board
* whether any National Guard Bureau (NGB) or Headquarters, Department of the Army (HQDA) written policies addressed "one time occasional tour" AGR officers for continuation beyond their tours
* whether the applicant's retirement was voluntary or involuntary

3.  Counsel provides:

* Motion to Remand
* All documents previously submitted



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the two previous considerations of the applicant's case by the ABCMR in Docket Numbers AR20060008632 on 22 March 2007 and AR20070014067 on    8 April 2008.

2.  The applicant is a retired colonel, having served in the Oregon Army National Guard (ORARNG).

3.  The applicant's OMPF reflects the following:

	a.  With no prior service, he enlisted in the Regular Army (RA) for 4 years on 30 January 1981.  He was selected to attend Officer Candidate School and successfully completed that training on 18 March 1983.  On 17 March 1983, he was honorably discharged as an enlisted Soldier in order to accept a commission.  He had enlisted active federal service (AFS) of 2 years, 1 month, and 18 days.

	b.  On 18 March 1983, the applicant was appointed a Second Lieutenant, Infantry and accessed onto active duty (AD) as a U.S. Army Reserve (USAR) officer.  He held various company grade assignments and was promoted to First Lieutenant and Captain.  On 1 October 1992, he was released from active duty (REFRAD) under the provisions of the Voluntary Incentive Program with a Special Separation Bonus of $63,157.50.  He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing:

* Net  AFS of 9 years, 6 months, and 14 days for that period of service
* prior (enlisted) AFS of 2 years, 1 month, and 18 days

	c.  Upon REFRAD, the applicant was initially assigned to the USAR Control Group (Reinforcement).  On 24 February 1993, he was appointed as a Captain, Infantry in the ORARNG.  He was promoted to Major on 1 October 1993.  He was assigned duties as Executive Officer, 1st Battalion, 186th Infantry on or about 18 July 1995.

	d.  The applicant attended the resident U.S. Army Command and General Staff Officers Course at Fort Leavenworth, KS from 26 July 1995 through          14 December 1995.  There is no DD Form 214 available in his OMPF; however, he would have served AFS of 0 years, 4 months, and 19 days.

	e.  According to his DA Form 2-1 (Personnel Qualification Record – Part II), the applicant entered the AGR Program (Title 32) on or about 30 September 1998.  He was assigned as commander of the 1st Battalion, 186th Infantry on Orders 54-5, Headquarters, ORARNG, dated 23 February 1999, effective         25 April 1999.  He was promoted to Lieutenant Colonel on 24 August 1999.

	f.  The applicant and his unit were ordered to AD in accordance with Title 10 U.S. Code, section 12302 (10 USC 12302) for service in support of Operation Enduring Freedom.  The DD Form 214 he was issued shows:

* service from 6 May 2002 through 28 January 2003 – 0 years, 8 months, and 23 days
* change in status from Title 32 to Title 10 effective 6 May 2002
* revert to Title 32 status effective 29 January 2003

	g.  The applicant relinquished his battalion command on 1 May 2003 and was reassigned to Headquarters, State Area Command (STARC), ORARNG.  He was promoted to Colonel on 29 September 2003.

4.  Orders 231-1, NGB, Arlington, VA, dated 19 August 2003, ordered the applicant to AD under the authority of 10 USC 12301(d) in accordance with 10 USC 12310(a).  The orders transferred the applicant from Title 32 AGR status to Title 10 AGR status for a "one time occasional tour."  He was not accessed into the strength of the Active Army.

	a.  The applicant served in a Title 10 AGR status as a member of the U.S. Army Element, Headquarters, Northern Command (NORTHCOM), Colorado Springs, CO with duty at Peterson Air Force Base, CO.

	b.  On 28 February 2006, he was released from assignment and active duty by Orders 10-2, NGB, Arlington, VA, dated 10 January 2006, and placed on the retired list as a Colonel, effective 1 March 2006.  His retirement orders indicate his voluntary retirement with 20 years, 1 month, and 1 day of AFS.

5.  The applicant was issued a retirement DD Form 214 which reflects:

	a.  in item 23 (Type of Separation) – "Retirement";

	b.  in item 25 (Separation Authority) – "AR [Army Regulation] 600-8-24, PARA 6–14c(1)" (this paragraph falls under Section II (Voluntary Retirements) and provides an RA or USAR commissioned officer with 20 years AFS (of which 10 years is active commissioned service may on his or her request and the approval of Secretary of the Army be retired);

	c.  in item 26 (Separation Code) – "RBD"; and

	d.  in item 28 (Narrative Reason for Separation) – "Sufficient Service for Retirement."

6.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from AD, and the SPD codes to be entered on DD Form 214.  It provides SPD code "RBD" identifies voluntary retirement for length of service.

7.  The following is provided concerning "One-Time Occasional Tours":

	a.  DOD Instruction (DODI) 1205.18 (Full-Time Support (FTS) to the Reserve Components) provides "AGR programs in each Military Service shall be administered as career programs that may lead to a military retirement after attaining the required years of active Federal service.  Personnel may be placed in AGR status for occasional, one-time tours…."  The DODI does not define the term "occasional, one-time tour."

	b.  Many NGB position vacancy announcements for Title 10 AGR positions provide that Title 32 AGR personnel may apply for Title 10 vacancies; however, they will be accessed under Title 10 as a "One-Time Occasional Tour (OTOT)" Soldier and serve for a limited period of time, with no possibility of gaining career status in the Title 10 AGR program.

8.  Army Regulation 135-18 (The Active Guard Reserve (AGR) Program) prescribes the policy and procedures for the administration of the AGR Program.  The regulation then in effect provided, in paragraph 4-7 (Extension on active duty or FTNGD (Full-Time National Guard Duty) beyond 20 years AFS):

	a.  AGR officers will be released from AD (serving under 10 USC) or FTNGD (serving under 32 USC) when they have attained 20 years of AFS, according to the policies prescribed in Army Regulation 600-8-24 or National Guard Regulation 600-5 (32 USC), unless approved for extension, under the policy prescribed in paragraph b below.

	b.  AGR commissioned officers may be retained on AD beyond 20 years of AFS through a board process, convened at least annually.

* Consideration of eligible officers for retention is automatic; as such, officers need not apply for retention consideration
* Time in grade requirements, for retirement purposes, will be in accordance with the provisions of 10 USC 1370
* Deputy Chief of Staff (DCS), G-1 (DAPE-MPO):
* will manage the retention board process by adhering to Department of Army board procedures
* is responsible for writing the memoranda of instruction, recessing boards, and processing the results to Chief, NGB, the Chief, Army Reserve, or the Assistant Secretary of the Army ASA, Manpower and Reserve Affairs (M&RA ) as appropriate

* ASA, Manpower and Reserve Affairs (M&RA):

* has delegated the authority to Chief, NGB, and the Chief, Army Reserve to approve board results for extension up to 22 years of AFS for their respective component
* will approve all board results for extension beyond 22 years of AFS up to mandatory removal date (MRD)

* Extensions may be approved in increments of up to 3 years

	c.  Officers and warrant officers who are extended under the provisions of paragraph b above will be released at the expiration of their retention period under Army Regulation 600-8-24 (10 USC) or National Guard Regulation 600-5 (32 USC), unless further retained in a separate action under paragraph b above, or sooner released or separated under applicable law or regulations.  Officers and warrant officers will not be retained in an active status beyond their established Mandatory Removal Date (MRD).

9.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The opinion, dated 23 September 2011, states:

	a.  Army Regulation 135-18, dated 19 June 2003 and in effect when Active Service Tour Continuation Boards (AFSTCB) were announced, mandated that AGR officers would be released from AD when they attained 20 years of AFS.  The regulation was updated on 1 November 2004 to include board procedures to extend AGR officers past 20 years of AFS.  This update resulted from an 11 February 2003 memorandum from the ASA (M&RA) authorizing AGR extensions subject to a board process.

	b.  The applicant was not entitled to a Title 10 AGR AFSTCB because he was not in the Title 10 AGR program; he was in the Title 32 AGR program.  Each program is managed separately, with separate personnel authorizations by rank.  Promotions, schooling, and assignments are managed and executed independently.  When the applicant entered on AD to fill a NORTHCOM Title 10 AGR position, he did so on a temporary basis via a one-time occasional tour.  When the AFSTCB process was initiated for career Title 10 AGR program officers, he was not notified because he was not in the career Title 10 AGR program; he was a career Title 32 AGR program officer on a temporary Title 10 AGR tour.

	c.  Each State was given the option of conducting continuation boards if they determined it necessary to meet State (Title 32) program needs.  The applicant and the ORARNG STARC were both informed that, because his Title 10 tour was ending, if the State intended to return him to Title 32 AGR program status, he must be boarded in order to continue beyond 20 years of AFS.  Oregon did not extend any ORARNG Colonels beyond 20 years during the relevant period.

	d.  The applicant faced a dilemma.  He had, or would have, 20 years of AFS when his temporary, one-time occasional tour ended.  Because he was not a career Title 10 AGR program officer, he could not be boarded for Title 10 continuation.  At the same time, the State of Oregon did not see fit to extend any Title 32 AGR program officers for continuation.  Given that set of circumstances, the applicant faced the decision to retire or revert to an USAR status.  He chose retirement, and that retirement was voluntary.

10.  On 21 October 2011, the applicant, through counsel, responded to the NGB advisory opinion and argued as follows:

* Army Regulation 135-18, then in effect, mandated the applicant's consideration by a Title 10 AGR AFSTCB
* the 9 October 2003 letter specified all Title 10 AGR officers be boarded for continuation
* there is no definition of a "one-time occasional tour"
* there was no distinction between Title 10 AGR program status and the applicant's Title 10 status
* policy in 2011 confirms the applicant's 2003 entitlement to a continuation board
* the applicant was involuntarily forced into retirement

DISCUSSION AND CONCLUSIONS:

1.  Title 10 and Title 32 are two similar yet distinct sets of laws pertaining to active military service.  Title 10 USC, section 12301d, applies to those officers, warrant officers, and enlisted personnel who are serving on active duty as part of the active Army.  Title 32 AGR Soldiers are not considered part of the active duty force structure.  They are controlled by 32 USC, 502f.  This section of the U.S. Code authorizes a fulltime National Guard status to man the National Guard with a professional fulltime force.  Title 32 officers and warrant officers are considered "state controlled" and fall under the jurisdiction of the respective Adjutants General in each State and Territory.  The Title 10 AGR program is administered by the National Guard Bureau; its functions and responsibilities are not overseen by the State Adjutants General.

2.  Title 32 AGR program officers may temporarily leave their State full-time programs and serve in a Title 32 part-time status, or they may temporarily leave to serve in a Title 10 status on a one-time, occasional tour.  Doing either does not remove them from the Title 32 AGR program or afford them Title 10 AGR program status.

3.  The applicant was serving in a Title 10 AGR status, but was not in the Title 10 AGR Program.  The 9 October 2003 letter was targeted to Title 10 AGR program participants; therefore, the applicant, who was not a member of the target population, did not receive it because he was not entitled to review by the Title 10 AGR AFSTCB.

4.  The applicant is correct in stating the term "one-time occasional tour" is not defined; however, common usage by the various State Adjutants General suggests it to mean "temporary" as applied to Title 10 AGR tours.

5.  Longstanding policy dictated that reserve officers in the AGR programs be released from active duty after 20 years of AFS, sometimes years before their mandatory retirement dates (MRD).  Since 11 September 2001, this has been viewed as a waste of resources given the operational tempo in the war on terrorism.  Thus interim policies were implemented to provide relief via continuation boards.  These policies continue to evolve and the policies of 2011 bear only slight resemblance to the policies of 2003.  The applicant was subject to the evolving policies of 2003 and after, as were all similarly-situated officers.

6.  The applicant was not eligible for consideration by a Title 10 AGR AFSTCB.  Unfortunately for him, his State did not continue any Oregon Title 32 AGR Program officers beyond 20 years of service.  Therefore, he faced two choices – retire or transfer to the USAR.  His decision to retire was voluntary given his choices.



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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20060008632, dated 22 March 2007, and Docket Number AR20070014067 on 8 April 2008.



      _____________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)                                         AR20110004587



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ABCMR Record of Proceedings (cont)                                         AR20110004587



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