IN THE CASE OF:	   

		BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20130017286 


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:

* his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 31 October 2011 be voided
* reinstatement into the Army National Guard (ARNG) as of 31 October 2011
* entitlement to back pay and allowances 

2.  The applicant states:

	a.  He was discharged from the Indiana ARNG (INARNG) by the Enlisted Qualitative Retention Board (EQRB).  In April 2011, he was notified by his command sergeant major (CSM) that he was not being retained for service and would be separated by 31 October 2011.  He asked why he was being put out and was told the board does not tell you why but just that you are not being retained.  

	b.  A year later, his brother told him Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 19 (Qualitative Management Program (QMP)), stated each Soldier would get copy of the board proceedings and they could appeal.  After reading the regulation, he contacted CSM P___ to see what could be done.  He then met with The Adjutant General, INARNG, Major General (MG) U______, and CSM G_____.  It was found that a temporary and a permanent profile were missing from his personnel file.  When asked, CSM G_____ stated if these had been in his file it would have kept him in.  He was told by MG U______'s legal team they could not back date a discharge because of money.

	c.  He was given the profiles by his command after his commander signed them.  His administration department should have put a copy of the profile in his record but they did not.  He was questioned about why he didn't take the Army Physical Fitness Test (APFT) for almost a year and he told them he was on temporary profile because he had surgery on his hand.  After the profile ended, he took the APFT and passed.  He also had a permanent profile and did the 2.5 mile walk instead of the 2 mile run.  Neither of these profiles were in the packet the board reviewed and that was why he was put out.  His command recommended he be allowed to stay in for 20 years [of active duty time].

	d.  MG U______ told him he could come back [into the INARNG] as a prior service enlistee.  However, he was not able to do that as he was disqualified from the service due to his NGB Form 22 and having over 30 percent (%) disability.  If he had not been put out of the INARNG in 2011, he would not have filed for disability and he would be retiring in March 2014.

	e.  On 24 June 2013, he again met with CSM G_____.  The meeting was to inform him (the applicant) that he was disqualified from enlisting in the ARNG.  He told the CSM that he knew that and that was why he wanted to be reinstated into the ARNG with back pay.  He asked over and over why he was put out to begin with and CSM G_____ stated it could have been for anything.  This CSM is retired, is over 30% disabled, and he is being brought back [into the ARNG].  It is not fair that the CSM has this opportunity and he does not.

	f.  Another thing that was bought up was that he had a fitness for duty (FFD) memorandum [in his record] and it said he weighed 278.01 pounds (lbs).  This had to be a typographical error as the most he ever weighed was 218.  When MG U______ told him he could reenlist, it made him realize that MG U______ knew he had been put out unjustly.

	g.  His family has suffered from the events that occurred.  His insurance was much better when he was in the ARNG and much more affordable.  The [lack of the] pay he received when he was in and the retired pay he would have received in 2014 has hurt his family.  People say if you have 18 years [of service] you are "locked in" for retirement.  Army Regulation 635-200 states you only need 17 years and 9 months to be locked in.  He had 17 years and 7 months of total active duty service and put in over 26 years total service.  He would like the opportunity to retire with 20 years of active duty service.

3.  The applicant provides his NGB Form 22, DD Form 214 (Certificate of Release or Discharge Active Duty), DA Form 2-1 (Personnel Qualification Record), three DA Forms 3349 (Physical Profile), two DA Forms 5500 (Body Fat Content Worksheet (Male), two DA Forms 705 (APFT Scorecard), three DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), DA Form 4856 (Developmental Counseling Form), four letters of support, three memoranda, two letters, and five pages of email.  

CONSIDERATION OF EVIDENCE:

1.  Having had prior active and ARNG service, the applicant enlisted in the INARNG in the rank/grade of staff sergeant/E-6 on 1 January 2000 with concurrent call to active duty as a member of the Active Guard Reserve (AGR).  He was assigned to the ARNG Recruiting and Retention Detachment, Indianapolis, IN, as a Recruiter and Retention NCO.

2.  On 22 August 2001, he was promoted to the rank/grade of sergeant first class (SFC)/E-7.  On 3 August 2005, he was promoted to the rank/grade of master sergeant (MSG)/E-8.  

3.  On 18 August 2005, by memorandum, the Office of the Adjutant General, Indianapolis, issued the applicant a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).  This memorandum notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

4.  On 1 November 2005, he voluntarily accepted a reduction in rank from MSG to SFC.

5.  His record contains an NCOER covering the 12-month rating period 1 May 2006 to 30 April 2007 wherein it shows he failed the APFT on 10 February 2007, his height/weight as 67/205, and he failed to meet the weight standard.  It included the comment by his rater that he "failed to meet APFT standards for the 2 mile run and sit-ups" and "failed to meet body fat standards…with a body fat of 28%," and the comment by his senior rater that "with additional experience, will make an effective Station NCO."

6.  The applicant provides NCOERs covering the rating periods: 

* 1 May 2007 - 30 April 2008 wherein it shows he passed the APFT on 15 August 2007, his height/weight as 68/205, he met the body fat standard, the comment by his rater "he is both physically and mentally ready," and by his senior rater "promote ahead of peers"
* 1 May 2008 - 28 February 2009 wherein it shows he passed the APFT on 8 October 2008, his height/weight as 68/205 lbs, he met the body fat standard, the comment by his rater "always projects a positive image" and by his senior rater "promote with peers"
* 1 March 2009 - 28 February 2010 wherein it shows he was on profile on 16 October 2009, his height/weight as 69/217 lbs, he met the body fat standard, the comment by his rater "temporary profile does not hinder duty performance" and by his senior rater "do not promote at this time"

7.  He also provides a memorandum, dated 28 December 2009, issued by the Military Medical Support Office, Great Lakes, IL, wherein the INARNG was notified he (the applicant) had been identified with a potential FFD medical condition of "diagnoses 278.01 - morbid obesity."  It also stated the letter was for notification purposes only and did not require the commander to take any action.

8.  On 14 October 2010, he was notified that the Fiscal Year 2011 (FY11) EQRB would review and select the best qualified enlisted personnel for retention beyond 20 years of service.  It stated, in part, all Soldiers serving in an AGR status who had achieved 20 or more years of qualifying service for non-regular retirement with less than 18 years active service as of the date of the board were required to be considered by the QRB.  

9.  The applicant provides a:

	a.  Memorandum, dated 5 November 2010, wherein his battalion commander certified the applicant's height/ weight was 68/213 as of 20 October 2010, he met the weight standard, and his recommendation (the commander's) was the applicant be allowed to achieve 20 years active duty service and then retire.

	b.  Memorandum, dated 5 November 2010, wherein he stated he had reviewed his Official Military Personnel File (OMPF) and, if not selected for retention, he requested transfer to the Retired Reserve and that he wanted to be allowed to achieve 20 years of active duty service.

10.  On 1 April 2011, he was notified by MG U______ that the Enlisted Career Management Board completed its mission and that he (MG U______) had reviewed the board findings and approved their recommendations.  The board recommended that he not be retained for continued service in the INARNG, his discharge date would be no later than 31 October 2011, and he could request to be discharged sooner.

11.  On 12 April 2011, he was counseled by CSM S____ that he was not selected for continued service in the INARNG and that a Soldier may not appeal the nonselection for retention other than reason of ineligibility for consideration.  The CSM stated factors considered by the board were performance as demonstrated by evaluation reports, review of the personnel file, other evidence presented to the board; medical condition and physical fitness are such that there are no significant assignment limitations; any other factor having a bearing on a Soldier's future performance and contribution to a unit. 

12.  He was honorably released from active duty on 31 October 2011 to the control of the INARNG.  The DD Form 214 he was issued shows he had 11 years and 10 months of creditable active service during this period of service and 17 years and 8 months of total active service.

13.  This DD Form 214 also shows he was involuntarily separated, he elected to take full separation pay in the amount of $100,488.00, and the Separation Authority as Army Regulation 135-18 (The AGR Program), Table 2-6, Rule K.

14.  On 31 October 2011, he was honorably separated from the ARNG in the rank of SFC and he was transferred to the Retired Reserve.  The NGB Form 22 he was issued for this period of service shows he had a total of 26 years, 2 months, and 19 days of Reserve service for retired pay and the Separation Authority as National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-36r, not selected for retentions by a QRB (Army Regulation 135-205 (ARNG and U.S. Army Reserve (USAR) Enlisted Personnel Management).

15.  In a letter, dated 10 September 2013, he was notified by MG U______ that his request for reenlistment in the INARNG was denied as it was not within his regulatory authority to grant his request.  The recommendations of the QRB were properly accepted and therefore deemed valid.  While he (the applicant) could speculate regarding the basis upon which the board recommended non-retention, board results were not published and were conducted in accordance with Army Regulation 135-205.  However, he had the option to petition the Army Board for Correction of Military Records (ABCMR).

16.  The applicant provides:

	a.  Three letters of support dated 11, 19, and 20 February 2014, wherein CSM P___, Brigadier General D_____, and Lieutenant Colonel L____, respectively, all stated the applicant was a hardworking, sincere person and recommended he be reinstated into the AGR Program.

	b.  A letter of support, dated 13 February 2014, wherein MG U______ stated the INARNG would accept him back into the ARNG if the ABCMR agreed he should be reinstated.

17.  Army Regulation 135-18, Table 2-6, lists nonwaivable disqualifications in the AGR Program.  Rule K states a Soldier is ineligible for subsequent duty in the AGR Program if they have not been selected for continued service by a continuation board. 

18.  Army Regulation 135-205, chapter 2 governs the Qualitative Retention Program (QRP) and states the purpose of the QRP is to determine retention potential and designed to ensure only the best qualified Soldiers are retained beyond 20 years of qualifying service, provide for career incentive, to ensure an opportunity for advancement to the higher grades during the peak years of a Soldier's effectiveness, satisfy the continuing requirement for senior NCOs by the appropriate commands, and provide the command with a tool to control enlisted personnel inventory and management of career progression.  The QRP is not designed to be used in lieu of separation or removal procedures authorized by other regulations such as unsatisfactory performance, unsatisfactory participation, and failure to meet body fat standards.

19.  National Guard Regulation 600-200 establishes standards, policies, and procedures for the management of ARNG enlisted soldiers.  Paragraph 6-36r pertains to nonselection for retention by a QRB and the Soldier elects to be reassigned to the Retired Reserve.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant's record appeared before an EQRB for selective retention but he was not selected.  The board was conducted in compliance with applicable regulations with no indication of procedural errors.  The approving authority reviewed the board findings and subsequently approved their recommendations.

2.  The applicant contends two profiles were missing from his OMPF and that was why he was not selected for retention.  However, there is no evidence to support this contention.  The EQRB is not required to divulge reasons for nonselection and the board would have reviewed his NCOERs that showed his last APFT, any applicable profile data, his height/weight, and whether he met weight/body fat standards.  In addition, his unit provided a statement to the board that certified his height/ weight and that he met the body fat standard and he reviewed his OMPF prior to the convening date of the board and could have included any missing information as he saw fit.
3.  As he was selected for non-retention by the QRB, he was properly released from active duty on 31 October 2011 to the control of the ARNG in accordance with Army Regulation 135-18, Table 2-6, Rule K, as shown on his DD Form 214.

4.  His NGB Form 22 also shows he was properly separated on 31 October 2011 and transferred to the Retired Reserve in accordance with National Guard Regulation 600-200, paragraph 6-36r by reason of not selected for retention by a QRB.  As he was an ARNG Soldier and not in the Regular Army, he was not governed by Army Regulation 635-200.  

5.  In view of the foregoing, there is no basis for granting 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.



      _____________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)                                         AR20130017286



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ABCMR Record of Proceedings (cont)                                         AR20130017286



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