IN THE CASE OF:	  

		BOARD DATE:	  28 July 2015

		DOCKET NUMBER:  AR20140021006 


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, reinstatement to active duty.

2.  The applicant states he should have been allowed to remain on active duty until his mandatory retirement date.  In August 2011, he was notified that he had been selected for release from the Army National Guard Title 10 Program by a Release from Active Duty (REFRAD) Board.  At the time, he was serving in a Colonel (COL) (O-6) position in Iraq as the Team Leader for the Joint Improvised Explosive Device Defeat Organization (JIEDDO).  Upon completing the assignment and after his return, he was retired.  This appeared to be the only option available to him.  In December 2011, he received a letter from the Office of the Inspector General (IG) that the REFRAD Board was not conducted in accordance with required procedures.  He requested a copy of the IG Report which he received in March 2014.  At the time, he was unable to take action due to surgery.  He has since recovered.  He is requesting that his retirement order be revoked and that he be returned to active duty in the rank of COL and be permitted to remain on active duty until he reaches his mandatory retirement date (MRD).  He is requesting a date of rank of 1 October 2011.  His request is based on the fact that at the time of the REFRAD Board, he was serving in a bona fide COL position and had been selected for promotion to COL by the FY-2011 Reserve Component Colonel Promotion Board.

3.  The applicant provides copies of:

* Email, subject: JIEDDO Billet for 6-Month Tour of Duty in Iraq, dated          10 May 2011
* Orders 154-14, National Guard Bureau (NGB), dated 3 June 2011
* Memorandum, NGB, subject: Non-retention for Continued Service on the Title 10 Active Guard Reserve (AGR) Program, dated 3 August 2011
* Memorandum from applicant acknowledging his non-retention for continued service, dated 6 August 2011
* Fiscal Year 2011 Colonel Reserve Components/Army Promotion List, Selection Board Results, dated 8 November 2011 (10 pages)
* U.S. Army Inspector General Agency Report of Investigation (ROI) (Case 13-XXX), dated 16 September 2013 (15 pages)
* Letter, Office of the Inspector General, dated 19 December 2013

CONSIDERATION OF EVIDENCE:

1.  On 23 March 2010, the applicant entered active duty as a lieutenant colonel (LTC), pay grade O-5, Armor, Army National Guard of the United States (ARNGUS).

2.  Orders 154-14, NGB, dated 3 June 2011, directed his deployment to Iraq for duty as the JIEDDO Team Leader, in support of Operation Iraqi Freedom.

3.  In a memorandum from the NGB, dated 3 August 2011, the applicant was notified that a REFRAD Board had convened in June 2011 and selected him for release from the Title 10 AGR Program.  He was further advised that he had 
30 days from receipt of the notification in which to decide whether to return to traditional drilling status, apply for retirement, or transfer to the Army Reserve (a troop program unit (TPU), Individual Mobilization Authorization (IMA), or the Individual Ready Reserve (IRR)).

4.  In a memorandum, dated 6 August 2011, the applicant acknowledged his non-retention in the AGR Program and his options.  He indicated his understanding that there was no appeal process and he had to notify his assignment officer of his decision no later than 5 September 2011.

5.  The Fiscal Year 2011 COL RC/APL, Selection Board Results were released on 8 November 2011.  The applicant's name was listed under the non-active Guard Reserve and National Guard Competitive Categories. 

6.  On 31 January 2013, the applicant was retired due to sufficient length of service.  He had completed 22 years, 3 months, and 27 days of active duty service.

7.  The IG ROI, dated 16 September 2013, states that the Acting Director, ARNG had improperly reduced the population of considered officers for the CY 2011 REFRAD Board by using time-in-grade (TIG) as a criterion.  The list was reduced from approximately 225 to 36 officers.  However, the selection objectives for the AGR REFRAD Board were set in Policy Memo 10-002 and did not include the use of TIG.  Despite this major revision of established policy, there was no documentation, exception to policy, legal opinions, or justification detailing how and why the decisions were made regarding the officers considered/not considered for the board.  The IG recommended that the ROI be referred to The Judge Advocate General and that the complainants be notified of their right to seek redress through the Army Board for Correction of Military Records (ABCMR).

8.  The IG notified the applicant in a memorandum, dated 19 December 2013, that the REFRAD Board had been improperly conducted and that he could request relief via the ABCMR.

9.  In the processing of this case, an advisory opinion was provided by the Chief, Officer Division, Office of the Deputy Chief of Staff, G-1 (Personnel Officer), Washington, DC.  The opinion provided:

	a.  The applicant was commissioned on 6 August 1986 as a member of the Georgia Army National Guard (GAARNG).  He entered the AGR Program on 
15 June 1998 and served continuously until 31 July 2012.  The applicant's MRD for maximum years of commissioned service under the provisions of Title 10, U.S. Code (USC) section 14507(b), due to his selection for promotion to COL, would have been 1 September 2016; and his MRD for maximum age is 
1 November 2021.  However, under the provisions of Title 10, USC section 14317, if a Reserve officer on the Reserve Active-Status List (RASL) is transferred to an inactive status or to a retired status after having been recommended for promotion to a higher grade, but before being promoted, the officer shall be treated as if he/she had not been considered and recommended for promotion by the selection board or examined and been found qualified for Federal recognition and may not be placed on a promotion list or promoted to the higher grade after returning to an active status.  Accordingly, the applicant's MRD was 1 September 2014 based on his rank of LTC and pay grade of O-5.

	b.  The AGR Program is administered as a career program in accordance with Department of Defense Instructions.  On 1 September 2005, the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA (M&RA)) suspended the 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 earlier removed by a 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.

	c.  A review of the applicant's Army Military Human Resources Record (AMHRR) and documentation submitted with his application or relief confirmed that he had been considered and selected for REFRAD by the Calendar Year (CY) 2011 ARNG AGR REFRAD Board.  Based on the approved board results, he was notified of his selection for release from the ARNG Title 10 AGR Program, with the options to return to traditional drilling status, apply for retirement, or elect transfer to the Army Reserve, not later than 12 months from the date of selection for removal.  The applicant elected to apply for retirement and was REFRAD on 31 January 2013, and placed on the Retired List on 1 February 2013.

	d.  Subsequent to approval of the CY 2011 ARNG AGR REFRAD Board, the Office of the IG, Department of the Army, received three separate complaints alleging that the Acting Director, Army National Guard, conducted the REFRAD Board improperly.  The allegations were substantiated in the IG's ROI 13-XXX, dated 16 September 2013.  A review of the redacted copy of this ROI, as provided by the applicant, confirmed that he did not receive fair and equitable consideration for retention.  Except for his selection for REFRAD by the CY 2011 ARNG AGR REFRAD Board, or a subsequent REFRAD board, it is reasonable to presume that the applicant would have otherwise continued in active service until reaching his MRD for maximum years of commissioned service on 1 September 2016.  However, his actual removal from the RASL on 1 February 2013 effectively negated his selection for promotion to colonel and kept his MRD as 1 September 2014.

	e.  The advisory opinion recommended the following partial relief:

* His DD Form 214, Item 12b read "2014 08 31"
* His DD Form 214, Item 12c read "0004 05 09"
* His NGB Orders 235-5 dated 22 August 2012 be amended to reflect an effective date of 31 August 2014; a retirement date of 1 September 2014; and that the entries for voluntary retirement service, section 1405 service, and basic pay service be recomputed and corrected to reflect an additional 1 year and 7 months of active service
* His NGB Special Orders 91 AR, dated 2 April 2013, be corrected to reflect an effective date of 31 August 2014
* His GAARNG Orders 085-1001, dated 26 March 2013, be corrected to reflect an effective date of 31 August 2014
* His NGB Form 22, effective 20130131 be corrected by the GAARNG to reflect an effective date of 20140831 in Item 8b; and that all entries in Item 10 be recomputed and corrected to reflect an additional 1 year and 7 months of active service
* His NGB Form 23 be corrected by the GAARNG to reflect an additional     1 year and 7 months of active service and active status membership in the ARNG ending 31 August 2014
* His retirement certificates be reissued with effective dates as 1 September 2014
* His NGB Form 55b be reissued by the GAARNG with an effective date of 31 August 2014
* His retired pay be recalculated based on an additional 1 year and 7 months of active service
* His unpaid retired pay and allowances due as a result of these corrections be paid from National Guard Personnel, Army AGR funds

10.  On 12 April 2015, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  The applicant responded as follows in a letter dated 30 April 2015:

	a.  He contends that he should be a COL with an MRD of 31 August 2016.

	b.  He had planned on remaining in uniform until his MRD.  He would have remained in service until 31 August 2016 had the REFRAD Board not occurred.

	c.  He argues that National Guard officers compete for promotion in both the ARNG and the U. S. Army Reserve (USAR) promotion systems.  In the ARNG officers are promoted based on unit vacancy when they are assigned to a position of a higher grade and meet the administrative requirements.  The USAR board process was the system under which he was selected for promotion.

	d.  He contends that because of the REFRAD Board action, he was not considered by the NGB for a unit vacancy promotion in the Title 10 system through a board process in 2011, 2012, or 2013.  Furthermore, because of his title 10 status, the GAARNG did not consider him for promotion, even though he had met all of the promotion requirements as evidenced by his selection by the Army Reserve Board.

	e.  At the time of the REFRAD Board, he was serving as the Field Team Leader for the JIEDDO in Iraq.  He was in a bona-fide COL position as a LTC.  He was the only LTC to ever serve in this position.

	f.  He believes his chances of being selected for promotion to COL would have been very high due to the fact that he was successfully serving in the COL position for JIEDDO if the REFRAD Board had not occurred.  Furthermore, when he returned from Iraq, he had a follow-on detail to JIEDDO as a liaison officer.  While in this position, he was selected to temporarily replace a retiring Senior Executive Service civilian at the Terrorist Explosive Devices Analytical Center for several months.  This was a highly visible joint interagency assignment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military records should be corrected by reinstating him to active duty as a COL with an MRD of 1 September 2016.

2.  The available evidence shows that in June 2011, the applicant was selected by an AGR REFRAD Board for non-retention.  He was accordingly notified of this action in August 2011 and afforded the option of returning to drill status, retiring, or transferring to the USAR for duty with a TPU, IMA, or placement in the IRR.  The applicant chose to retire.

3.  Subsequent to his decision, the FY 2011 COL RC/APL, Selection Board Results were released on 8 November 2011.  Title 10, USC, section 14317 clearly states that if a Reserve officer on the RASL is transferred to an inactive status or to a retired status after having been recommended for promotion to a higher grade, but before being promoted, the officer shall be treated as if he/she had not been considered and recommended for promotion by the selection board, and may not be placed on a promotion list or promoted to the higher grade after returning to an active status.  This Board does not have jurisdiction to change law.  Accordingly, the applicant's request to be reinstated to active duty in the AGR program as a COL must be denied.

4.  As a result of an IG investigation, it was determined that the applicant's AGR REFRAD Board had been improperly conducted.  Unfortunately, his earlier decision to retire rather than remain in an active status resulted in the termination of his promotion for COL.

5.  However, due to the injustice that resulted by the improper conduct of the AGR REFRAD Board, it would be appropriate to accept, as a matter of equity, the recommendations put forth in the advisory opinion from the G-1, Department of the Army. 


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 and Army National Guard records of the individual concerned be corrected by:

	a.  Amending his DD Form 214, Item 12b to read "2014 08 31."

	b.  Amending his DD Form 214 Item 12c to read "0004 05 09."

	c.  Amending NGB Orders 235-5, dated 22 August 2012, to reflect an effective date of 31 August 2014; a retirement date of 1 September 2014; and that the entries for voluntary retirement service, section 1405 service, and basic pay service be recomputed and corrected to reflect an additional 1 year and 7 months of active service.

	d.  Amending NGB Special Orders 91 AR, dated 2 April 2013, to reflect an effective date of 31 August 2014.

	e.  Amending GAARNG Orders 085-1001, dated 26 March 2013, to reflect an effective date of 31 August 2014.

	f.  Amending his NGB Form 22, effective 20130131 to reflect an effective date of 20140831 in Item 8b; and that all entries in Item 10 be recomputed and corrected to reflect an additional 1 year and 7 months of active service.

	g.  Amending his NGB Form 23 to reflect an additional 1 year and 7 months of active service and active status membership in the ARNG, ending 31 August 2014.

	h.  Reissuing him retirement certificates with effective dates of 1 September 2014.
	i.  Reissuing him an NGB Form 55b with an effective date of 31 August 2014.

	j.  Recalculating his retired pay based on an additional 1 year and 7 months of active service.

	k.  Paying him all unpaid retired pay and allowances due as a result of these corrections.

2.  The Board further determined that the evidence presented was 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 reinstating him to the AGR Program as a colonel, pay grade O-6.

3.  The Board further directs that a copy of these proceedings be provided to The Adjutant General, Georgia National Guard, the National Guard Bureau, and the Defense Finance and Accounting Service in order to effect these corrections to military and pay records.




      __________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)                                         AR20140021006





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ABCMR Record of Proceedings (cont)                                         AR20140021006



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