IN THE CASE OF:	  

		BOARD DATE:	  12 May 2015

		DOCKET NUMBER:  AR20140013029 


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 to:

* amend his separation date from 30 November 2012 to 30 June 2015
* correct his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect a retirement date of 1 July 2015 instead of 1 December 2012
* receive payment of all pay and allowances for an additional 31 months of service (using Peterson Air Force Base in Colorado Springs, CO, for his Basic Allowance for Housing)
* re-compute his retirement pay to reflect an additional 31 months of active service

2.  The applicant states:

   a.  The preponderance of the evidence indicates and the Inspector General (IG) investigation proves that Major General (MG) retired (Ret) C________ improperly manipulated the zone of considered officers to such a narrow point that he and 35 other officers were specifically and unjustly targeted for removal from the Army National Guard (ARNG) Active Guard/Reserve (AGR) program through the 2011 Release From Active Duty (REFRAD) Board.

   b.  The Department of the Army (DA) IG clearly proved that MG (Ret) C________ incrementally reduced the population of the REFRAD board to exempt select Soldiers from the board process.  Of the original population of    225 officers, MG (Ret) C________ gave preferential treatment to 189 officers, or 84 percent of the original population.  His rationale was that colonels (COL) or lieutenant colonels with five years time-in-grade were probably "stagnant" and "not advancing in grade."  In the applicant's case the assumption was completely wrong.  During the summer of 2011 his personnel file also went before the COL 2011 APL selection board.  He was considered fully qualified for selection to COL and was recommended for promotion.  It is indisputably obvious that he was in a position to advance in grade and therefore could not be considered "stagnant."

   c.  He had every intention of serving until his mandatory retirement date (MRD).  All things being equal, had it not been for the 2011 REFRAD Board, he would still be on active duty and serving as the Deputy Chief, J9 Operations Division, at Headquarters, NORAD-USNORTHCOM in Colorado Springs, CO.  Forcing him to retire before June 2015 has had an extreme emotional and financial effect on he and his family .While he is quite fortunate to have a military pension, he has not been employed since he left active duty.  Contrary to popular belief, being a 50-year old retired LTC is not very attractive to civilian employers.

   d.  According to Annex A, paragraph 3 of the Chief, National Guard Bureau (CNGB) memorandum, dated  13 January 2010, subject:  Memorandum of Instruction (MOI) Fiscal Year (FY) 2010-2012 ARNG AGR REFRAD Boards, he was required to "show cause" for retention in an active status.  MG (Ret) C_______ did not allow him the opportunity.  The only opportunity for input he was given was to choose which action he would take, i.e., revert to M-Day status, join the U.S. Army Reserve, or retire upon attaining 20 years of active federal service.

3.  The applicant provides:

* a self-authored statement
* Department of the Army IG (DAIG) Report of Investigation (ROI)

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the MOARNG, the applicant was appointed as an officer in the ARNG effective 28 June 1987.  He entered the Title 10 Active Guard/Reserve Program on 1 November 1996, and served continuously until his retirement on 30 November 2012.

2.  On 9 November 2012, the Adjutant, MOARNG issued Orders 314-033, separating him from the ARNG effective 30 November 2012 and transferring him to the Retired Reserve.

3.  On 17 November 2011, NGB issued Orders 321-12, releasing the applicant from active duty on 30 November 2012 and placing him on the retired list effective 1 December 2012.  The orders show:

* voluntary retirement service:  20 years and 24 days
* section 1405 service:  21 years, 7 months, and 26 days
* basic pay service:  29 years and 10 months

4.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 30 November 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), "20121130"
* item 12c (Net Active Service This Period), "00160100"

5.  The MOARNG issued the applicant an NGB Form 22 (Report of Separation and Record of Service) showing in:

* item 8b (Effective Date), "20121130"
* item 10a (Net Service This Period), 22 years and 8 days
* item 10d, (Total Service for Pay), 29 years and 10 days
* item 10e (Total Service for Retired Pay), 29 years and 10 days

6.  On 19 November 2012, NGB issued Special Orders 402 AR, withdrawing the applicant's Federal recognition effective 30 November 2012.

7.  He submits a DAIG 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 three 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 conducted in accordance with 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 in accordance with required procedures.
9.  The AGR Program is administered as a career program in accordance with Department of Defense Instruction (DODI) 1205.18, enclosure 3, paragraph 3b.  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.

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 (30 June 2015) 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 30 June 2015 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 and in the interest of equity, it would be appropriate to grant the applicant's requested relief and to correct his records as recommended 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.  amending item 12b of his DD Form 214, currently for the period ending 30 November 2012, to show "20150630";

	b.  amending item 12c of his DD Form 214, currently for the period ending 30 November 2012, to show "00180800";

	c.  amending NGB Orders 321-12, dated 17 November 2011, to show:

* he was REFRAD effective 30 June 2015
* he was placed on the retired list effective 1 July 2015
* voluntary retirement service:  22 years, 7 months, and 24 days 
* section 1405 service:  24 years, 2 months, and 26 days
* basic pay service:  32 years and 5 months

	d.  amending NGB Special Orders 402 AR, dated 19 November 2012, to show an effective date of 30 June 2015;

	e.  amending Adjutant, MOARNG, Orders 314-033, dated 9 November 2012, to show an effective date of 30 June 2015;

	f.  amending the NGB Form 22, issued by the MOARNG, effective                30 November 2012, to show in:

* item 8b, an effective date of "20150630"
* item 10a, 25 years, 3 months, and 00 days
* item 10d, 32 years and 5 months
* item 10e, 32 years and 5 months

	g.  amending his NGB Form 23A to reflect an additional 2 years and 7 months of active service and active status membership in the ARNG ending 30 June 2015;

	h.  paying him pay and allowances that he would have otherwise received based upon his last duty assignment, for the period 1 December 2012 through 30 June 2015, less the amount received in retired pay during the same period; and

	i.  recalculating his retired pay to reflect an additional 2 years and 7 months of active service effective 1 July 2015.



      ____________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)                                         AR20140013029





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ABCMR Record of Proceedings (cont)                                         AR20140013029



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