IN THE CASE OF:	  

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20140008530 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect a retirement date of 31 May 2013; and as a result of this correction, adjustment of his retirement pay account and all pay and allowances due to him.

2.  The applicant states that the U.S. Army Inspector General (IG) Report of Investigation (ROI) XX-00X concluded that the 2011 Release from Active Duty (REFRAD) Board was not conducted in accordance with required procedures.  This caused his release from the Title 10 Active Guard Reserve (AGR) Program 10 months prior to his mandatory removal date (MRD).  His intent was to retire at his MRD.

3.  The applicant provides:

* Officer Record Brief (ORB)
* DD Form 214 for the period ending 31 July 2012
* National Guard Bureau (NGB) Memorandum, dated 3 August 2011
* REFRAD/retirement orders
* DAIG ROI XX-00X, dated 16 September 2013
* Department of the Army IG (DAIG) memorandums, dated 19 December 2013 and 11 March 2014



CONSIDERATION OF EVIDENCE:

1.  Having prior service, the applicant accepted an appointment in the Texas Army National Guard on 4 March 1994 and he entered the AGR program in November 1995.

2.  An NGB Memorandum for [Applicant], subject:  Non-retention for Continued Service on the Title 10 AGR Program, dated 3 August 2011, notified the applicant that the Calendar Year 2011 (CY11) Army National Guard (ARNG) AGR Officer REFRAD Board convened from 20-24 June 2011.  Upon board review of his records, he was selected for release from the Title 10 AGR Program.  He was given the following options:

* return to traditional drilling status
* apply for retirement
* transfer to the U.S. Army Reserve

3.  On 13 January 2012, NGB issued Orders 13-6, releasing the applicant from active duty on 31 August 2012 and placing him on the retired list effective 1 September 2012.  These orders were amended on 28 February 2012 to show his release from active duty on 31 July 2012 and placement on the retired list on 1 August 2012.  These orders further show:

* voluntary retirement service:  25 years, 9 months, and 11 days
* section 1405 service:  26 years, 2 months, and 5 days
* basic pay service:  29 years, 4 months, and 25 days

4.  His DD Form 214 shows that on 31 July 2012 he was retired from active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 6-13c(1) with sufficient service for retirement.  This DD Form 214 shows in:

* item 12b (Separation Date This Period), "2012 07 31"
* item 12c (Net Active Service This Period), "0016 08 16"

5.  On 11 September 2013, the Adjutant General, Texas issued Orders 254-067, separating him from the ARNG effective 31 July 2012 and transferring him to the Retired Reserve.

6.  On 18 September 2013, NGB issued Special Orders 233 AR, withdrawing the applicant's Federal recognition effective 31 July 2012.

7.  He submits a DAIG Agency ROI (Case XX-00X), dated 16 September 2013, which states the allegation that the Acting Director, ARNG (DARNG) conducted a REFRAD Board improperly was substantiated.  The complainants in this case alleged that the Acting DARNG incrementally reduced the population of the REFRAD board to exempt select Soldiers from the board process.  The complainants further alleged that the board was not in accordance with (IAW) standard policies and established procedures.  A review of the procedures that the Acting DARNG implemented indicated that this restructuring of the REFRAD board process resulted in the omission of approximately 189 officers from consideration.

8.  He submits a DAIG letter addressed to him, dated 19 December 2013, stating the DAIG had concluded an investigation into an allegation regarding the conduct of the 2011 REFRAD Board.  Their evidence established that the 2011 REFRAD Board was not conducted IAW required procedures.  In addition, he submits his ORB, dated 20 January 2011, which shows his MRD as 31 May 2013.

9.  In a previous case before the ABCMR, the Office of the Deputy Chief of Staff, G-1, Chief, Officer Division, provided an advisory opinion, dated 20 May 2014.  The advisory official stated:

	a.  On 1 September 2005, the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA (M&RA)) suspended Army policy requiring AGR officers to be REFRAD when they attained 20 years of active service.  This change authorized AGR officers to continue serving voluntarily on active duty until they reached a statutory MRD, unless sooner removed by board action.  Included in the ASA (M&RA)'s 1 September 2005 policy directive for AGR lifecycle management was authority to hold AGR REFRAD boards when required to address AGR grade imbalances or strength overages.  On 16 July 2007, the ASA (M&RA) published revised guidance for AGR lifecycle management, providing implementing guidance for the conduct of the AGR REFRAD boards.

	b.  Subsequent to approval of the CY11 ARNG AGR REFRAD Board, the Office of the DAIG received three separate complaints alleging the Acting DARNG conducted the REFRAD board improperly.  The DAIG ROI (Case XX-00X) substantiated the allegations and the officers who were released were notified by the DAIG that the CY11 ARNG AGR REFRAD Board was not conducted IAW required procedures.  A review of the redacted ROI provided to the applicant by the DAIG confirms that he did not receive fair and equitable consideration for retention in the Title 10 AGR Program along with all other officers in the zone of consideration.  Except for his selection for REFRAD by the CY11 ARNG AGR REFRAD Board or a subsequent REFRAD board, it is reasonable to assume the applicant would have otherwise continued in active service until reaching his MRD for maximum years of service.

	c.  Based on the facts as outlined above, the Army G-1 recommended approval of the applicant's request for relief and that the following corrections to his official military records be made:

		(1) amendment of item 12b of his DD Form 214 to show his MRD;

		(2) amendment of item 12c of his DD Form 214 to show an adjusted computation based on the above correction;

		(3) amendment of NGB orders to show he was REFRAD effective on his MRD; placed on the retired list effective the next day; and to show entries for voluntary retirement service, section 1405 service, and basic pay service recomputed and corrected to reflect the appropriate amount of additional months of active service;

		(4) amendment of NGB Special Orders transferring him to the Retired Reserve to show an effective date of his MRD;

		(5) amendment of his state ARNG orders separating him from the ARNG to show an effective date of his MRD;

		(6) amendment of his NGB Form 22, (Report of Separation and Record of Service) to show an effective date of his MRD in item 8b and that all pertinent entries in item 10 be recomputed and corrected to reflect or factor an additional amount of active service;

		(7) amendment of the applicant's NGB Form 23 (Retirement Credits Record) to reflect the additional active service and active status membership in the ARNG ending on his MRD;

		(8) that the applicant receive the pay and allowances, paid in whole or in part, if possible, from National Guard Personnel, Army funds he would have otherwise received based upon his last duty assignment, for the period beginning the date he was erroneously placed on the retired list through his MRD, less the amount received in retired pay during the same period; and

		(9) recomputation of his retired pay to reflect or factor his additional active service effective the date he was erroneously placed on the retired list.

10.  The advisory official further recommended that the appropriate State Adjutant General, NGB, and the Defense Finance and Accounting Service be furnished a copy of the Board's decision in order to effect correction to the applicant's military and pay records, as applicable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he would have continued on active duty until his MRD for maximum years of commissioned service had it not been for the improperly conducted CY11 ARNG AGR REFRAD Board which selected him for REFRAD.  Though it is not possible to know whether he would have been selected by a "properly" conducted REFRAD board, it is reasonable to presume he would have served until 31 May 2013 if he had not been selected for REFRAD by the CY11 ARNG AGR REFRAD Board.  As a result of the board's decision, he was given the opportunity to elect to return to drilling status, apply for retirement, or transfer to the USAR.  He elected to retire.

2.  The evidence shows the DAIG substantiated allegations from three separate complainants that the CY11 ARNG AGR REFRAD Board was improperly conducted.

3.  In view of the foregoing, in the interest of equity, it would be appropriate to grant the applicant's requested relief and to correct his records as recommended by the Office of the Deputy Chief of Staff, G-1, as shown below.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  correcting his DD Form 214 for the period ending 31 July 2012 to show in:

* item 12b - 2013 05 31
* item 12c - 0017 06 16

	b.  amending NGB Orders 13-6, dated 13 January 2012, to show:

* he was REFRAD effective 31 May 2013
* he was placed on the retired list effective 1 June 2013
* the appropriate service calculations for his Voluntary Retirement, Section 1405 service, and Basic Pay 

	c.  amending NGB Special Orders 233 AR, dated 18 September 2013, to show an effective date of 31 May 2013;

	d.  amending Adjutant General, Texas, Orders 254-067, dated 11 September 2013, to show an effective date of 31 May 2013;

	e.  amending his NGB Form 22 to show an effective date of 31 May 2013, with the appropriate adjustments for this additional service to his net service, total service for pay, and total service for retired pay;

	f.  amending his NGB Form 23A to reflect an additional 10 months of active service and active status membership in the ARNG ending 31 May 2013;

	g.  paying him pay and allowances from Army National Guard funds that he would have otherwise received based upon his last duty assignment, for the period 1 August 2012 through 31 May 2013, less the amount received in retired pay during the same period; and

	h.  recalculation of his retired pay to reflect an additional 10 months of active service effective 1 June 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)                                         AR20140008530





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ABCMR Record of Proceedings (cont)                                         AR20140008530



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