IN THE CASE OF:  	  

		BOARD DATE:  3 December 2014	  

		DOCKET NUMBER:  AR20140003923 


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.  correction of his discharge orders to show the reason for his discharge was reaching his mandatory removal date (MRD) and

	b.  payment of separation pay.

2.  He states:

	a.  Congress authorized payment of separation pay upon separation after at least 6 years of continuous active duty (AD) to service members who are not qualified to receive retirement payments.  Department of Defense Instruction (DODI) 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay) provides the policy for separation pay, which does not exclude his circumstances.  The DOD Financial Management Regulation (DODFMR) further supports payment.  The Kentucky Army National Guard (KYARNG) has declined payment on the advice of National Guard Bureau (NGB) staff for reasons that are not supported by regulation or law.  

	b.  He is appealing to this Board because he has exhausted all other avenues for correcting the record.  The Kentucky National Guard (KYNG) has ignored the advice of their own staff judge advocate (SJA) and chosen instead to rely on an NGB staff officer's opinion.  An undersecretary of defense deferred the matter to another undersecretary, whose response referred him to administrative procedures he had already followed.  
	c.  Separation pay eligibility is conditioned on four criteria:  (1) having served 6 years on AD immediately prior to separation, (2) having been involuntarily honorably discharged, (3) being qualified for retention at the time of separation, and (4) having entered into a written agreement to serve 3 years in the Ready Reserve.  The National Guard has agreed that the first two conditions for receipt of separation pay have been met.  

	d.  Regarding being qualified for retention at the time of separation, the DODFMR, paragraph 350201.3.a states the member must be fully qualified for retention but denied reenlistment or continuation.  This includes a member who is eligible for promotion as established by the Secretary concerned, but who is denied reenlistment or continuation on AD under established promotion or high year of tenure policies.

		(1)  Colonel (COL) L________, Director, Human Resources, KYNG, based his determination that he is not eligible on information obtained from NGB, in particular Major (MAJ) V______, whose opinion is that because he has reached his MRD he is no longer fully qualified for retention having already served the maximum time permitted.  

		(2)  Lieutenant Colonel (LTC) D____ S____, KYNG SJA, stated it appeared that MAJ V______ misread DODI 1332.29, paragraph 3.1.3.1 regarding what it means to be eligible for promotion.  The SJA stated the applicant would not have gone before a Department of the Army (DA) board had he not been eligible for promotion.  He stated the applicant was denied continuation on AD as a result of established promotion/tenure policies.  He was not selected for promotion, which, in turn, did not extend his MRD.  

		(3) MAJ V______ stated he was not qualified for retention because he had served the maximum time "permitted."  National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition) states mandatory removal for a LTC occurs at 28 years.  Therefore, in agreement with the DODFMR, paragraph 350201.3.a, he was denied continuation on AD under established promotion or high year of tenure policies.

		(4)  It has been further stated that he was not fully qualified for retention because he was not eligible for promotion at his discharge.  Promotion eligibility and mandatory removal are not linked in any way.  He could have been promoted at any time prior to his MRD, and his MRD would have been extended.  

	e.  Regarding the requirement to enter into a written agreement to serve 3 years in the Ready Reserve, he acknowledges no such agreement was signed.  He believes it is capricious to rely on this point to deny separation pay.  The governing regulations do not state when this agreement is to be signed.  If this were the only objection to giving him separation pay, he can sign the agreement today and receive separation pay immediately.  He notes that a member who enters into the agreement and is then found to be not qualified for appointment in the Ready Reserve is considered to have met this condition.  

	f.  An individual identified to him was discharged from the National Guard within the last 2 years due to reaching his MRD and was paid separation pay.  He was told that this person was on AD at NGB and after discharge remained employed by NGB.  

	g.  Should the Board decide against his petition, he would appreciate an understanding of why.  

3.  He provides:

* e-mail
* self-authored timeline of events
* DD Form 214 (Certificate of Release or Discharge from AD)
* compact disc containing 14 files 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that, with prior enlisted service in the Air National Guard (ANG), he was appointed as a second lieutenant (2LT) in the ANG effective 28 February 1985.  Effective 27 March 1987, he was appointed as a 2LT in the KYARNG.  He served in an active status as a commissioned officer in the ARNG until his separation effective 28 February 2013.

2.  An ARNG Retirement Points History Statement shows he entered full-time National Guard Duty in an Active Guard Reserve (AGR) status on 21 June 1999 and remained on AD until his separation in 2013.  

3.  Effective 11 August 2005, he was promoted to LTC/pay grade O-5.  

4.  On 8 November 2011, he was notified that he had not been selected for promotion by the DA Reserve Components Selection Board convened on 7 July 2011.  

5.  On 18 December 2012, he was notified that he had not been selected for promotion by the DA Reserve Components Selection Board convened on 9 July 2012.  

6.  On 10 January 2013, the Department of Military Affairs, Boone National Guard Center, Frankfort, KY, issued Orders 010-805 honorably separating him from the ARNG effective 28 February 2013 and transferring him to the Retired Reserve.  The orders show the reason for separation was his request to be separated and transferred to the Retired Reserve.  The authority for his separation is shown as National Guard Regulation 635-100.  

7.  A DD Form 214 for the period ending 28 February 2013 shows the authority for his separation as "TERMINATING ORDER TAGO #008-841 DTD 130108" and the narrative reason for separation as "COMPLETION OF AGR PERIOD."

8.  An NGB Form 22 (Report of Separation and Record of Service) for the period ending 28 February 2013 shows the authority and reason for his separation was National Guard Regulation 635-100.  

9.  His records are void of documentation showing he received separation pay in conjunction with his separation on 28 February 2013 or that he entered into an agreement to serve in the Ready Reserve for 3 years subsequent to his separation. 

10.  He provides, in part, e-mail showing an officer at NGB had recommended denial of his request because he was not fully qualified for retention, but a KYARNG SJA recommended approval based on a different interpretation of DODI 1332.29, paragraph 3.1.3.1.     

11.  The e-mail correspondence he provides also shows the Director, Human Resources, KYNG, denied his request for separation pay based on the determination that he had not met two of four requirements for receipt of separation pay:  he was not fully qualified for retention because he had reached his MRD and he had elected transfer to the Retired Reserve, which is not part of the Ready Reserve.

12.  During the processing of this case, the Chief, Personnel Policy Division, NGB, provided an advisory opinion recommending disapproval of the applicant's request.  The advisory official states:

	a.  The KYARNG determined the applicant was not fully qualified for retention because he has already served the maximum time permitted and he transferred to the Retired Reserves, which is not part of the Ready Reserve.  

	b.  The DODFMR, section 305201 lists four requirements that must be met to be eligible for separation pay.  The member must:

* have more than 6 but less than 18 years of AD service
* have an honorable separation
* be fully qualified for retention
* have entered into a written agreement to remain a member of the Ready Reserve

	c.  Based on the DODFMR, all conditions must be met.  There is no evidence showing the applicant was fully qualified for retention or that he entered into a written agreement to remain a member of the Ready Reserve.

	d.  The KYARNG concurs with the recommendation.  

13.  On 15 September 2014, the applicant responded to the advisory opinion.  He states he concurs with several points made in the advisory opinion, but disagrees with the determination that he did not meet two requirements of DODFMR, paragraph 350201.A.3.  

	a.  Regarding paragraph 350201.A.3.a, the question is if removal from active duty due to having reached one's MRD constitutes being "unqualified for" retention or if such a removal is due to "denied continuation."  Eligibility for promotion and retention is not predicated upon the MRD.  Instead, retention is predicated upon such criteria as medical status, physical fitness, and civilian and military education.  Promotion eligibility is based on time in grade.  Promotion selection may have other criteria, but not promotion eligibility.  The MRD is an Army policy.  NGB can extend an MRD, further indicating it is not a final barrier to retention, but a policy guideline.  He contends he met all qualifications for retention.  

	b.  In paragraph 350201.A.3.c, the DODFMR specifically states that a Reserve commissioned officer other than a commissioned warrant officer must be separated or transferred to the Retired Reserve.  This clearly negates NGB's objections regarding his transfer to the Retired Reserve and established separation pay eligibility.  

	c.  He contends that the KYARNG is deferring to NGB's interpretation.  He notes that NGB makes no mention of the legal opinion provided by the KYARNG SJA explaining why NGB is incorrect.  Further, NGB has not explained why they supported separation pay for another individual in similar circumstances.  

14.  DODI 1332.29 states, in pertinent part, that full payment of non-disability separation pay is authorized to members of the Reserve components involuntarily separated from AD who meet each of following four conditions: 

	a.  The member is on AD or full-time National Guard duty and has completed at least 6 years, but fewer than 20 years, of active service.  For Reserve members not on the AD list when separated, 6 years of continuous AD or full-time National Guard duty must have preceded immediately before such separation. 

	b.  The Service member's separation is characterized as honorable.

	c.  The Service member is being involuntarily separated by the Military Service concerned through either the denial of reenlistment or the denial of continuation on AD or full-time National Guard duty, under one of the following specific conditions – 

		(1) The member is fully qualified for retention, but is denied reenlistment or continuation by the Military Service concerned.  This includes a Service member who is eligible for promotion as established by the Secretary of the Military Department concerned, but is denied reenlistment or continuation on AD by the Military Service concerned under established promotion or high year of tenure policies. 

		(2)  The member is fully qualified for retention and is being involuntarily separated under a reduction in force by authority designated by the Secretary of the Military Department concerned.

		(3)  The member is a Reserve commissioned officer, other than a commissioned warrant officer, separated or transferred to the Retired Reserve under an applicable chapter of Title 10, U.S. Code; or a Reserve commissioned officer on the AD list or a Reserve warrant officer who is separated for similar reasons under Service policies.

	d.  The Service member has entered into a written agreement with the Military Service concerned to serve in the Ready Reserve of a Reserve component of the Armed Forces for a period of not less than 3 years following the separation from AD.

15.  The DODFMR reiterates the separation pay criteria listed in DODI 1332.39.  Paragraph 350201.A.3 states a member who is separated involuntarily through either the denial of reenlistment or the denial of continuation on AD or full-time National Guard duty must meet one of four specific conditions.  Paragraph 350201.A.3.a states the member must be fully qualified for retention but denied reenlistment or continuation.  This includes a Military Service member who is eligible for promotion as established by the Secretary of the Military Service concerned, but is denied reenlistment or continuation on active duty under established promotion or high year of tenure policies.

16.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-33e, states that, unless continued on the Reserve Active Status List (RASL) or credited with 18 or more but less than 20 years of qualifying service for retired pay, each LTC who is not on a list of officers recommended for promotion to COL will be removed from the RASL on the first day of the month after the month in which the officer completes 28 years of commissioned service.  ARNG officers will be processed according to National Guard Regulation 635-100.  

17.  National Guard Regulation 635-100 states an ARNG LTC will be removed from an active status due to completion of maximum service 30 days after completing 28 years of service unless the officer has been recommended for promotion.  Officers removed from an active status by reason of completion of maximum service may be transferred to the Retired Reserve if they are qualified and apply for transfer.  

18.  Title 10, U.S. Code, section 14507, states, in pertinent part, that unless continued on the RASL or retained under another section of this title each Reserve officer of the Army who holds the grade of LTC and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the RASL) be removed from that list on the first day of the month after the month in which the officer completes 28 years of commissioned service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant completed 28 years of commissioned service on 27 February 2013.  His MRD was 1 March 2013, the first day of the month after the month in which he completed 28 years of commissioned service.  The record shows his separation date was 28 February 2013, one day prior to his MRD.  Although he would have had to voluntarily request transfer to the Retired Reserve, it is clear that such a request was not the underlying basis for his separation.  It would be appropriate to amend Orders 010-805 to show the reason for his separation was "Completion of maximum service."  

2.  Notwithstanding the recommended change to his separation orders, there is no basis for paying him separation pay.  Under Federal law, he was not eligible for retention because he was an LTC who was not on a promotion list and had completed 28 years of service.  The law provides for exceptions, but only under limited circumstances.  Because he was not eligible for retention, he did not meet one of the requirements for receipt of separation pay, and all requirements must be met to receive this pay.  

3.  He indicates another Soldier received separation pay under circumstances similar to his own.  The Board is not an investigative body.  It considers evidence brought before it and evidence readily available in an applicant's personnel records.  Even if there were documentary evidence indicating an individual received separation pay under similar circumstances, it appears such a decision would have been made in error.  An error benefiting another individual would not be a basis for granting relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Orders 010-805 to show the reason for his separation was "Completion of maximum service."  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to paying him separation pay.  



      ___________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)                                         AR20140003923





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ABCMR Record of Proceedings (cont)                                         AR20140003923



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