IN THE CASE OF:    

		BOARD DATE:  3 February 2015	  

		DOCKET NUMBER:  AR20140007959 


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 amendment of Nebraska Army National Guard (NEARNG) Orders Number 116-730, dated 26 April 2013, and amendment of National Guard Bureau (NGB) Special Orders Number 147 AR, dated 13 June 2013, to show he was transferred to the Individual Ready Reserve (IRR) instead of the Retired Reserve effective 1 July 2013.  

2.  The applicant states:

	a.  He was erroneously transferred to the Retired Reserve instead of the IRR when he was separated from the NEARNG.

	b.  He was non-selected for retention by the 2013 Selective Retention Board (SRB) conducted by the NEARNG.  Based upon this board action, his participation in the Active Guard Reserve (AGR) program also ended effective 
30 June 2013, the date of his separation. 

	c.  He elected to receive separation pay based on information provided during counseling by the Human Resources Officer (HRO) and the AGR branch manager.  He was paid approximately $180,000 of separation pay prior to the Defense Finance and Accounting Service notifying the NEARNG that he was not eligible to receive separation pay because he was transferred to the Retired Reserve instead of the IRR.

	d.  It was his understanding that the 3-year commitment for assignment to the IRR (required for separation pay eligibility) was an automatic personnel action upon separation as acknowledged by him during separation counseling in Part III (Summary of Counseling) of the DA Form 4856 (Developmental Counseling Form), dated 6 May 2013.

	e.  The paperwork he completed during his separation process clearly states "transfer to the IRR."  He believes this action occurred due to a series of miscommunications between himself, the AGR personnel office, and the G-1 of the NEARNG.

	f.  The Military Personnel Office (MILPO) (G1) has election sheets that officers going before the SRB fill out electing to either go into the IRR or the Retired Reserve if non-selected.  The default selection is Retired Reserve for those officers with 20 or more years of service toward a non-regular retirement.  Because he had more than 20 years of service, the G-1 erroneously transferred him to the Retired Reserve as communication between the HRO and the MILPO as far as the requirement for 3 years of IRR service (for separation pay) did not occur.  

	g.  Each separation action was independent from the other.  Without the orders amendment, he could be held liable to repay the $180,000 in separation pay he received.

3.  The applicant provides his separation packet which includes:

* untitled document, dated 17 January 2013, pertaining to his separation election option in the event of non-selection for retention
* NEARNG memorandum, dated 11 March 2013, subject:  Non-Selection for Continued Retention
* NEARNG Orders Number 116-730, dated 26 April 2013
* DA Form 4856, dated 6 May 2013
* DA Form 4187 (Personnel Action), dated 6 May 2013
* NGB Special Orders Number 141 AR, dated 6 June 2013
* NGB Special Orders Number 147 AR, dated 13 June 2013
* Officer Record Brief

CONSIDERATION OF EVIDENCE:

1.  The applicant, while serving in the rank of lieutenant colonel as a member of the NEARNG in an AGR status, signed a statement on 17 January 2013, indicating that if selected for non-retention he elected transfer to the Retired Reserve.  

2.  In a memorandum dated 11 March 2013, he was informed that he was not selected for retention in the NEARNG.  His separation date was established as 30 June 2013.  He was also informed that he would be transferred to the U.S Army Reserve (USAR) Control Group (Reinforcement)/IRR) or the Retired Reserve according to his signed selection.

3.  NEARNG Orders Number 116-730, dated 26 April 2013, directed his separation from the ARNG and transferred to the Retired Reserve effective       30 June 2013.

4.  A DA Form 4856, dated 6 May 2013, shows he was counseled regarding his involuntary release from the NEARNG AGR Program effective 30 June 2013.  Part III of the form shows he acknowledged he understood that:

* he met the guidelines and requirements to be eligible for separation pay upon involuntary discharge or release from active duty 
* if he elected to receive separation pay, he must remain in the Ready Reserve for a minimum of 3 years
* the recoupment of separation pay from retired pay is accomplished through monthly deductions from each payment of retired pay until the amount of the deductions equals the gross taxable amount of separation

5.  A DA Form 4187, dated 6 May 2013, indicates that as a condition of entitlement to active duty separation pay, he agreed to remain in the Ready Reserve for a period of not less than 3 years from 1 July 2013.

6.  On 6 June 2013, NGB published Special Orders Number 141 AR, withdrawing the applicant's Federal recognition based on his honorable discharge.  

7.  On 13 June 2013, NGB published Special Orders Number 147 AR, amending NGB Special Orders 141 AR, dated 6 June 2013, by changing the applicant's status from "honorable discharge" to "transferred to USAR/Retired."

8.  The applicant's ARNG Current Annual Statement, prepared on 8 November 2013, shows he was credited with over 27 years of service of retired pay.

9.  In the processing of this case, an advisory opinion was obtained from the NGB, Personnel Policy Division.  This office recommends approval of the applicant's request and stated:

	a.  Based on information provided by the applicant's HRO and AGR branch manager, he elected to receive a separation pay in the amount of $180,000. 

	b.  Documentation signed by the applicant on 17 January 2013 shows he was placed [elected to be placed] into the Retired Reserves [if selected for non-retention].  A DA Form 4187, dated 6 May 2013, shows he agreed to a Ready Reserve obligation of 3 years in order to receive separation pay.

	c.  NEARNG memorandum, dated 24 November 2014, states that the applicant was non-selected for retention by the 2013 SRB.  Prior to the SRB convening, he was required to make an outcome selection in the event of non-selection.  He elected transfer to Retired Reserve.  Due to his AGR status, he was counseled by the HRO and the AGR branch manager and he elected, prior to separation, to serve in the Ready Reserve for 3 years.  The G-1 processed his separation order based upon his election on 17 January 2013 and it was not included in the separation pay discussion with the HRO.

	d.  It is recommended that NEARNG Orders Number 116-730, dated 26 April 2013, be amended to read "transfer to the IRR effective 1 July 2013."  Additionally, recommend amending NGB Special Orders Number 147 AR, dated 13 June 2013.

	e.  This recommendation was coordinated with the ARNG Retirement Services Branch.

	f.  The NEARNG concurs with their recommendation.

10.  A copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  No response was received.

11.  National Guard Regulation 635-102 (Personnel Separations-Officers and Warrant Officers Selective Retention) provides that when Federal recognition is withdrawn from officers under provisions of this regulation, they become member of the USAR.  It further provides that unless officers elect in writing to be assigned to the Retired Reserve, they will be transferred to the USAR Personnel Center with assignment to the USAR Control Group (Reinforcement).

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that on 17 January 2013 the applicant elected transferred to the Retired Reserve in the event of non-selection for retention.  Accordingly, the NEARNG published orders on 26 April 2013 transferring him to the Retired Reserve.

2.  The evidence also shows that after receiving formal counseling on 6 May 2013 pertaining to his options in the event of non-selection for retention, he elected transfer to IRR with entitlement to separation pay.  

3.  The evidence further shows he received separation pay.  Therefore, it appears that as a result of some form of miscommunication between the parties involved orders transferring him to the Retired Reserve were published, contrary to his final election of transferring to the IRR with entitlement to separation pay.  

4.  Based on the foregoing, NEARNG Orders Number 116-730, dated 26 April 2013, and NGB Special Orders Number 147 AR, dated 13 June 2013, should be amended to show he was transferred to the IRR instead of the Retired Reserve, effective 1 July 2013.  

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by amending Military Department of Nebraska Orders Number 
116-730, dated 26 April 2013, and NGB Special Orders Number 147 AR, dated 
13 June 2013, to show he was transferred to the IRR effective 1 July 2013.




      _______ _   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)                                         AR20140007959



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ABCMR Record of Proceedings (cont)                                         AR20140007959



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