IN THE CASE OF:	  

		BOARD DATE:	 20 March 2014 

		DOCKET NUMBER:  AR20130012486 


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 correction of his records to show he was involuntarily retired in the rank of colonel (COL)/pay grade O-6.

2.  The applicant states he was grossly mismanaged and unjustly separated from the Army National Guard (ARNG) of the United States (ARNGUS) in the rank of lieutenant colonel (LTC)/pay grade O-5.  The New York ARNG (NYARNG) senior leadership and subject matter expert (SME) staff approved and supported the decision to promote and deploy him.  However, they either did not know or failed to inform him of the provisions of Title 10, U.S. Code, section 1370 (10 USC 1370) (Commissioned officers:  General Rule:  Exceptions) or Department of the Army Personnel Policy Guidance (PPG), dated 1 July 2009.

3.  The applicant provides copies of the following documents:

* DA Form 1559 (Inspector General [IG] Action Request) with 9 exhibits
* correspondence with Senator Kirsten E. G---------, United States Senate
* correspondence with Governor Andrew M. C----, State of New York
* letter from his counsel to Major General Patrick A. M-----, The Adjutant General, NYARNG

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show he was involuntarily retired in the rank of COL (O-6).

2.  Counsel, in effect, defers to the applicant.

3.  Counsel provides no documentary evidence in support of the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered the ARNG on 6 July 1979.  He was appointed as a Reserve commissioned officer of the Army in the NYARNG on 25 May 1985.

2.  State of New York, Latham, NY, Orders 016-1027, dated 16 January 2004, promoted the applicant to LTC (O-5) in the NYARNG effective 15 January 2004.  The additional instructions show, in pertinent part, "The effective date of promotion in the ARNGUS will be the effective date on the Permanent Federal Recognition orders."

3.  National Guard Bureau (NGB), Washington, DC, Special Orders Number 55 AR, dated 10 March 2004, announced the extension of Federal Recognition of the applicant's promotion to LTC (O-5) effective 10 March 2004.

4.  Joint Force Headquarters (JFHQ), Latham, NY, Orders 306-1001, dated 
2 November 2011, promoted the applicant to COL (O-6) in the NYARNG effective 2 November 2011.  The additional instructions show, in pertinent part, "The effective date of promotion in the ARNGUS will be the effective date on the Permanent Federal Recognition orders."

5.  NGB, Washington, DC, Special Orders Number 281 AR, dated 3 November 2011, announced the extension of Federal Recognition of the applicant's promotion to COL (O-6) effective 2 November 2011 with a promotion eligibility date of 9 March 2009.

6.  A DD Form 214 (Certificate of Release or Discharge from Active Duty), as corrected by a DD Form 215 (Correction to DD Form 214), issued on 
25 February 2013, shows the applicant entered active duty this period on 
3 February 2010, was released from active duty (REFRAD) on 12 January 2012 based on completion of required active service, and transferred to JFHQ Forward, NYARNG.

7.  A DD Form 214 shows the applicant entered active duty this period on 
13 January 2012, was REFRAD on 4 January 2013 to continue on active duty in another status, and transferred to JFHQ Forward Element, NYARNG.  It also shows he served in Afghanistan from 2 March 2012 through 3 December 2012.

8.  JFHQ, NYARNG, Latham, NY, Orders 079-1031, dated 20 March 2013, transferred the applicant from Tactical Air Command (TAC), Deputy Commanding Officer (DCO), JFHQ Forward, NYARNG, to Deputy J-5, JFHQ Element, NYARNG, effective 20 March 2013, based on his REFRAD.

9.  JFHQ - NY, NYARNG, Latham, NY, Orders 130-0002, dated 10 May 2013, announced the applicant's retirement from active duty effective 30 June 2013 and placement on the retired list in the rank of LTC (O-5) effective 1 July 2013.

10.  A DD Form 214 shows the applicant entered active duty this period on 
5 January 2013, was retired on 30 June 2013 based on sufficient service for retirement, and transferred to the U.S. Army Reserve (USAR) Control Group (Retired).

11.  JFHQ, NYARNG, Latham, NY, Orders 184-1011, dated 3 July 2013, announced the applicant's separation from the ARNG effective 30 June 2013 and transfer to the USAR Control Group (Retired) upon termination of Federal Recognition.

12.  NGB, Washington, DC, Special Orders Number 179 AR, dated 22 July 2013, announced the withdrawal of Federal Recognition, effective 30 June 2013, and transfer of the applicant to the USAR Control Group (Retired).

13.  In support of his application, the applicant provides the following documents:

   a.  a copy of his IG Action Request with 9 exhibits requesting a review and assistance in the actions being taken by the NYARNG to process him for voluntary retirement in the rank of LTC (O-5) effective 30 June 2013.

    	(1)  He asserted that he would not have requested to volunteer to deploy or request a position in the Stability Transition Team (STT) knowing that he would not be retiring in the rank of COL (O-6).  He would have sought promotable positions outside the agency that would have allowed him the opportunity to complete the O-6 time-in-grade (TIG) requirement.

    	(2)  He stated that his mandatory retirement date is June 2015 and he was being forced into retirement as a LTC (O-5) or to transfer into the Individual Ready Reserve (IRR).  He provided a chronological account of his volunteering for the STT, transfer, promotion, REFRAD, and placement on the retired list in the rank of LTC (O-5).

    	(a)  JFHQ - NY, NYARNG, memorandum, dated 24 June 2010, subject:  Letter of Instruction Number 16-10 - STT, provided information to fill an STT for possible mobilization for deployment to Afghanistan.  It shows, in pertinent part, that there is no authority to promote Soldiers against positions in the STT and STT Soldiers remain eligible for promotion against vacancies within the NYARNG.  It advised that the Soldier has 1 year from demobilization to find an available authorized position for which they are qualified.  Soldiers who remain over grade or excess beyond 1 year face separation or reduction.

    	(b)  JFHQ - NY, NYARNG, memorandum for record (MFR), dated
25 October 2010, that shows the applicant acknowledged his selection to mobilize and deploy with the STT in one of the COL (O-6) positions and that the assignment would authorize him to be promoted to COL (O-6).  He indicated he understood that by accepting the assignment for promotion and deployment, he would retire from the NYARNG 180 days after REFRAD unless senior leadership asked him to remain in the NYARNG and he agreed.

    	(c)  JFHQ, NYARNG, Latham, NY, Orders 031-1025, dated 31 January 2011, transferred the applicant from Deputy J-5, JFHQ Element, NYARNG, to Combat Arms Generalist, JFHQ Forward, NYARNG, effective 1 February 2011, based on his REFRAD.

    	(d)  JFHQ, NYARNG, Latham, NY, Orders 195-1133, dated 14 July 2011, relieved the applicant from the duty position of Combat Arms Generalist and assigned him as the TAC DCO, effective 14 July 2011, based on his REFRAD.

    	(e)  DA Form 4856 (Developmental Counseling Statement), dated 
1 November 2011, shows COL Curtis B. W---------, Director, Human Resources Office, advised the applicant that a temporary Controlled Grade in the rank of COL (O-6) had been obtained for the period 24 October 2011 through 
30 January 2012 for the purpose of promoting the applicant prior to mobilization.  He was also advised that the temporary controlled grade expires on 30 January 2012 and that upon REFRAD the applicant would have 180 days to be assigned to a valid COL (O-6) authorized position or be transferred to the IRR.  It also shows the applicant indicated that he agreed with the information provided.

    	(f)  JFHQ - NY, NYYARNG, memorandum, dated 6 March 2013, and email message, subject:  Retirement Processing, that referenced Department of the Army PPG, dated 1 July 2009, and informed the applicant that, in response to his concern as to the nature of his separation, advice on his case was sought from NGB Retirement Services.  It was determined that since the applicant had not reached maximum age, maximum service, had not been "boarded out," or lost his position due to reduction in force, his separation was considered voluntary.  The memorandum he submitted in October 2010 and the counseling he received in November 2011 indicated he would retire within 180 days of his REFRAD unless he was assigned to a valid COL (O-6) position or transferred to the IRR; neither of which occurred.  In addition, the actions the applicant had recently taken (i.e., Army Career Alumni Program processing in February, a scheduled retirement physical in March, and his current Permissive Temporary Duty status to be followed by his approved Transition Leave) indicated his intent to retire effective 30 June 2013.

    	(g)  Memorandum from the applicant to The Adjutant General, NYARNG, dated 20 March 2013, subject:  Resolution of Retirement Discussion, that shows the applicant requested a meeting to continue the conversation regarding his future with the NYARNG.  He reviewed the actions and events that had occurred.  He asserted the matter of retiring as a LTC (O-5) upon redeployment was never addressed and he was not counseled on the matter.  He maintained that he was not fully informed by NYARNG senior leadership or SMEs and, therefore, he had been disadvantaged.  He proposed alternative solutions to his situation that included obtaining an exception to policy allowing him to retire as a COL (O-6), categorizing his separation as an involuntary retirement in the rank of COL (O-6), or obtaining the authority allowing him to continue to serve through November 2014 and complete the TIG requirement.

   b.  Correspondence from the applicant's spouse to Senator Kirsten E. G-------, United States Senate, dated 5 June 2013, requesting her assistance with the applicant's military retirement issues.  The senator advised her that she had presented the information to the appropriate officials for review and a response.

   c.  Correspondence from the applicant and his spouse to Governor Andrew M. C----, Governor of New York, dated 6 June 2013, requesting his assistance with the applicant's military retirement issues.  The governor advised them that their letter had been reviewed and directed to the appropriate members of his administration.

   d.  Correspondence from the applicant's counsel, Brigadier General Richard E. R-------, Judge Advocate General’s Corps, NY State Retired List, to Major General Patrick A. M-----, The Adjutant General, NYARNG, dated 8 May 2013, pertaining to the applicant's retirement.  He provided a synopsis of the events surrounding the applicant's case and requested positive resolution of the matter.

14.  In connection with the processing of this case, the Office of the IG, Washington, DC, was asked to provide information relevant to the applicant's
IG Action Request.  The IG's Report of Investigative Inquiry was provided that shows, in pertinent part:

   a.  The applicant signed an MFR, dated 25 October 2010, accepting voluntary retirement upon completion of his active duty deployment tour based on the fact that his Active Guard Reserve (AGR) position would no longer be available upon his return.  He also signed a DA Form 4856 acknowledging that he would have to retire within 180 days of his return from deployment unless he found himself a COL (O-6) AGR position somewhere outside of New York.

   b.  Nothing in the MFR or on the DA Form 4856 alluded to retirement rank or grade.

   c.  10 USC 1370 stipulates a TIG requirement of 3 years in order to voluntarily retire in the grade of O-6.

   d.  The IG report shows that upon review of Army Regulation (AR) 135-155 (ARNG Officer Promotions), National Guard Regulation (NGR) 600-100 (Officer Promotions), AR 600-8-24 (Transfers and Discharges), NGR 635-100, (Personnel Separations), AR 135-18 (AGR Program), NGR 600-5 (AGR Program), and Army PPG for Contingency Operations, there was no regulatory requirement for the NYARNG staff to have counseled the applicant on the TIG requirement for retirement.

   e.  The investigative report's conclusion shows that the preponderance of credible evidence indicated that the applicant's unfamiliarity with 10 USC 1370 led to his own misunderstanding of the TIG requirement for voluntary retirement and that the applicant was correctly retired in the grade of O-5.

15.  In connection with the processing of this case, the Defense Finance Accounting Service (DFAS) was asked to verify the applicant's grade of rank for retired pay.  A DFAS official confirmed the applicant was placed on the retired list in the rank/grade of LTC/O-5 and is being paid based on grade O-5.

16.  10 USC 1370 (Commissioned Officers:  General Rule; Exceptions) provides in:

   a.  Paragraph a (Rule for Retirement in Highest Grade Held Satisfactorily), that unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months. 

    	(1)  Subparagraph (2)(A), that in order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years.

    	(2)  Subparagraph (3), that a reserve or temporary officer who is notified that he will be REFRAD without his consent and thereafter requests retirement under section 3911, 6323, or 8911 of this title and is retired pursuant to that request is considered for purposes of this section, to have been retired involuntarily.  An officer retired pursuant to section 1186 (b)(1) of this title is considered for purposes of this section to have been retired voluntarily. 

   b.  Paragraph (b) (Retirement in Next Lower Grade), an officer whose length of service in the highest grade he held while on active duty does not meet the service in grade requirements specified in subsection (a) shall be retired in the next lower grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the applicant's records should be corrected to show he was involuntarily retired in the rank of COL (O-6) because he was not fully informed by NYARNG senior leadership or SMEs of the issues related to his redeployment that would preclude him from completing 3 years TIG in order to retire as a COL (O-6).

2.  The evidence of record shows the applicant volunteered to mobilize and deploy with the STT in a COL (O-6) position.  At that time he acknowledged by accepting the assignment for promotion and deployment that he understood his AGR position would no longer be available upon his return and, unless he found himself an O-6 AGR position somewhere outside of New York, he would either retire from the NYARNG or transfer to the IRR 180 days after his REFRAD.

3.  The evidence of record shows there was no regulatory requirement for the NYARNG staff to counsel the applicant on the TIG requirement for retirement.

4.  	The applicant was promoted to COL (O-6) effective 2 November 2011 and he was REFRAD on 4 January 2013 to continue in another status.

5.  There is no evidence of record that shows the applicant transferred to a COL (O-6) AGR position outside of New York or that he requested transfer to the IRR.

6.  The evidence of record shows that as early as 25 October 2010 the applicant acknowledged that he would retire within 180 days of his return from deployment if he did not transfer to the IRR or he was not assigned to an O-6 position.  In addition, the evidence of record shows he took affirmative steps to voluntarily retire effective 30 June 2013.  Thus, the evidence of record does not support the contention that his records should be corrected to show he involuntarily retired.

7.  On the date of his separation, the applicant had approximately 1 year and 
8 months TIG as a COL (O-6).  Title 10 shows that in order to be eligible for voluntary retirement in grade COL (O-6), a commissioned officer of the Army must have served on active duty in that grade for not less than 3 years.  The Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than 2 years.

8.  The 3-year TIG requirement to retire in the grade of O-6 is longstanding, established with the Defense Officer Personnel Management Act of December 1980.  The authorization to waive the requirement to 2 years TIG was established in 2004.

9.  Thus, the evidence of record fails to show that the applicant satisfied the TIG requirement to authorize his voluntary retirement in the grade of COL (O-6).

10.  Therefore, in view of all of the foregoing, there is an insufficient evidentiary basis to grant the applicant's requested 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.https://arbaacts.hqda.ds.army.mil/Case/AR20130012486/Closeout



      _______ _   _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)                                         AR20130012486



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ABCMR Record of Proceedings (cont)                                         AR20130012486



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