IN THE CASE OF:	  

		BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20150006171 


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 

* revocation of the separation order that ordered his separation from the Active Guard Reserve (AGR) program 
* reconsideration of his amended record for retention by the Fiscal Year 2014 (FY14) Release from Active Duty (REFRAD) board

2.  The applicant states:

	a.  He was involuntarily separated from the U.S. Army Reserve (USAR) based on the 2014 Active Guard Reserve (AGR) Release from Active Duty (REFRAD) results.  His board file at the time contained a referred officer evaluation report (OER) that the Officer Special Review Board (OSRB) struck down on 24 Mar 2015.  The Office of the Chief of Army Reserve (OCAR) G-1 states that there is no appeal process to the board's decision to involuntarily separate him even though the board made that decision on false and misleading information.  He wants his separation orders revoked and the REFRAD board to reconsider his amended record.  If they cannot put him before such a board then the decision to separate him must be rescinded until they can.  He deserves the same chance his peers were given.

	b.  OCAR refuses to reconsider the decision to involuntarily separate him from active duty despite the changes the OSRB made to his record.  They have stated in an email that there is no appeal process for such a board; yet, that is not true.  The OCAR G-1 publishes a list of Frequently Asked Questions (FAQs) for service members going before that board, and on page (4) that very question appears.  The question reads, "Can I appeal my selection?"  The answer given specifically states you can - but only under certain circumstances.  His circumstances do not meet the extremely narrow limits of that appeal process even though they absolutely should if the desire here is to be just. 

	c.  The OCAR G-1 told him that the Army Board for Correction of Military Records (ABCMR) is his only option.  He wants his REFRAD orders revoked because the decision to REFRAD him was based in part on false and prejudicial information.  The referred OER was based on the false assertion he failed the Army Physical Fitness Test (APFT).  The OSRB unanimously struck down that assertion.  As for the impact of such an assertion, consider this.  According to the FAQs, physical fitness is one of the key factors the board will consider in making their selection.  A referred OER for APFT failure is a huge discriminator, especially for a retention board that is specifically looking for them.  That referred OER made their job very easy.

	d.  To illustrate the impact this referred OER had on his chances for being selected for REFRAD, consider the historical trends, which are on the last page in the FAQs.  He went before the REFRAD board every year since 2010.  In each of those years, a fraction of those considered were selected.  In 2013, 341 lieutenant colonels (LTC) were considered and only 10 were selected; that is just under 3 percent.  To suggest that this referred OER may have played no part in the decision to REFRAD him is absurd, yet the OCAR G-1 implied that very thing.  He realizes the Army is in a draw down, yet that does not absolve the USAR from being unjust to Soldiers.  Justice necessitates that the USAR be agile enough to reconsider the decisions it makes when they are deemed to be made with false information.  For some of those decisions have potentially profound implications for Soldiers and their families.  Consider a LTC with 17 years of active service who is selected for REFRAD when his or her file contained an unjust evaluation that is later over turned.  As things stand now, he or she will REFRAD and receive nothing in terms of retirement benefits.  Their only hope is the ABCMR.  The active component is different.  Their people are put before a special board that reconsiders them with the changes to their records.  That is all he wants.

3.  The applicant provides:

* Notification of REFRAD Selection
* OSRB Record of Proceedings and decision
* Retirement orders
* 2014 AGR REFRAD FAQs
* Email correspondence 
CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and entered active duty on 17 December 1988. He was branched into Military Intelligence.

2.  He entered active duty on 17 October 1989 and served in a variety of stateside or overseas assignments.  He was honorably released from active duty on 15 August 1994 and he was transferred to the USAR Control Group (Reinforcement). 

3.  He entered active duty in the USAR AGR program on 26 September 1999.  He continued to serve in various troop program units of the USAR and he was promoted to major on 27 June 2001 and LTC on 27 March 2007. 

4.  On 11 July 2007, the U.S. Army Human Resources Command (HRC) issued him a Notification of Eligibility for Retired pay at Age 60 (20-Year Letter). 

5.  In 2013, he received a referred OER covering the rating period 30 August 2012 through 29 August 2013.  This OER indicated he failed the APFT. 

6.  On 11 April 2014, Military Personnel Message Number 14-104 (FY 2014 AGR REFRAD Board as a Force Alignment Tool) announced the procedural guidance for the REFRAD board, convening on or about 14 July 2014.  This board would consider all AGR LTCs and Colonels, as a shaping process to help meet the needs of the Army, USAR, and AGR program and is based on Congressional cap for AGR officers.  All LTCs with 18 or more years of service and with a date of rank of 1 May 2012 would be considered.  LTCs who have requested a retirement date of 1 July 2015 or earlier will not be considered.

	a.  Officer selected for REFRAD would be REFRAD on the first day of the 12th month after the date the CAR approves the board results. 

	b.  By law, AGR officers selected for REFRAD remain on the Reserve Active Status List (RASL) and are eligible for future promotion consideration

	c.  Officers selected for REFRAD will not be eligible for consideration on future AGR policy boards.

	d.  Appeals regarding ineligibility for consideration will be entertained.  Officers selected by the REFRAD board who are later found to have been ineligible for consideration may have their REFRAD selection nullified with approval of the CAR or designated representative.  Officers selected for REFRAD may elect to transfer to the Retired Reserve or request transfer to a Ready Reserve status such as TPU, Individual Ready Reserve (IRR), or Individual Mobilization Augmentee (IMA).

7.  On 23 September 2014, by memorandum, the U.S. Army Human Resources Command (HRC) notified the applicant that the results of the FY2014 REFRAD board held from 14 to 16 July 2014, were approved by the CAR on 2 September 2014.  He was selected for release from active duty.  His release date is based on certain options and would not be extended. 

* If he had more than 20 years of active service as of 31 August 2015, he would be released from active duty on 1 September 2015
* He may elect to transfer to another Selected Reserve status, such as TPU, IRR, or IMA.  
* There is no appeal process, waivers, or redress for AGR officers selected for REFRAD who are eligible for consideration by the REFRAD board; however, officers selected by the board and were later found to have been ineligible for consideration may have their REFRAD selection nullified with approval of CAR of his representative

8.  Following this announcement, on 3 October 2014, he submitted an "Acknowledgement and Options Statement" wherein he acknowledged he will have 20 years of active federal service and would request voluntary retirement, effective 1 September 2015. 

9.  On 6 October 2014, he submitted a request for voluntary retirement to be effective 1 September 2015.  His chain of command recommended approval. 

10.  On 15 November 2014, he submitted an appeal of the referred OER to the OSRB and on 5 March 2014, the OSRB granted partial relief by removing the "Fail" APFT entry (and other administrative entries) and indicated that promotion reconsideration was not warranted.

11.  On 28 March 2015, HRC published Orders P-03-590064 placing him on the Retired List in his retired grade of LTC effective 1 September 2015.

12.  On 1 April 2015, by email, his assignment officer at HRC advised him that only appeals regarding ineligibility for consideration will be entertained.  Officers selected by the board (for separation) who are later found to have been ineligible for consideration may have their REFRAD selection nullified with the approval of CAR or his designated representative.  Officers selected for REFRAD may elect to transfer to the Retired Reserve or revert to another Ready Reserve status such as TPU, IRR, or IMA.
13.  He provides a FAQs printout, updated on 15 April 2014 that answers questions related to: 

* Officer population to be considered by the REFRAD board
* Selection objectives of the board
* Documents to be reviewed by the board
* Key factors the board looks at
* Impact of selection on retirement and options
* Appeal process (officers can only appeal if they were ineligible for consideration by the board; officers later found to have been ineligible for consideration may have their REFRAD selection nullified)

14.  He provides an email showing he sought professional guidance from the USAR G-1.  She (the USAR G-1) explained to him that he seemed to have a misperception.  She states that the majority of officers selected for REFRAD by the previous year's board had no negative information in their files.  Because the USAR has been holding these boards for a few years, together with other promotion and command boards, there are very few with bad information.  This means the REFRAD board has to select good, even excellent, officers.  In other words, he could have been selected for REFRAD even without the contested OER in his file.  The USAR G-1 added that she did not want the applicant to think the only officers selected for REFRAD were either mediocre or had something negative in their files.  She personally reviewed some of those selected for RERAD and they had very good record. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a USAR officer serving on active duty in the AGR program, was notified as early as April 2014 that his records would be considered by the FY2014 REFRAD board.  The REFRAD board that convened in July 2014 selected him for separation.  At that time, he was presented with options.  In October 2014, he acknowledged receipt of his options and indicated his desire to retire by 1 September 2015.  He followed that with a retirement application that was endorsed by his chain of command and ultimately approved by HRC.

2.  The AGR Life Cycle Process includes promotion of AGR officers as a separate category, managing officers to their mandatory removal date, and REFRAD Boards.  The reason for holding REFRAD boards is to prevent possible stagnation in promotions and complacency in certain assignments while at the same time shaping the USAR officers population and preserves a strong and competitive USAR officer crops. 

3.  After he submitted his retirement application, he appealed a referred OER and his appeal was partially approved by the OSRB.  He believes that based on this appeal, the outcome of the REFRAD board may have been different.  However, this belief is speculative at best:

	a.  First, the applicant does not know the reasons for his non-selection.  Retention, REFRAD, and promotion boards are competitive in nature.  An officer not selected for retention can only conclude that the REFRAD board determined that his overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for retention.  As explained by the USAR G-1, he could have been selected for REFRAD even if the contested OER was not in his records. 

	b.  Second, the OSRB's decision did not warrant promotion reconsideration. Similar to promotion boards, the OSRB's decision did not warrant consideration by the USAR REFRAD board. 

	c.  Third, he does not qualify for reconsideration even if the OSRB's decision did warrant reconsideration.  According to the MILPER Message, FAQs, notification memorandum, and email exchange with the USAR G-1, officers selected by the REFRAD board who are later found to have been ineligible for consideration may have their REFRAD selection nullified with approval of the CAR or his designated representative.  This is not the case here. 

	d.  Finally, despite his selection for REFRAD, he remained on the RASL.  In other words, he could have transferred to a TPU, IMA, or the IRR.  Nothing prevented him from doing so.  Instead, he voluntarily requested retirement.

3.  In view of the facts of this case, the applicant is not entitled to reconsideration by a REFRAD board.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20150006171



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ABCMR Record of Proceedings (cont)                                         AR20150006171



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