PROCEEDINGS

IN THE CASE OF: 	   

BOARD DATE:	   23 May 2001
DOCKET NUMBER:	   AR2000042653

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

.	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Donald P. Hupman, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant is one of a group of officers involved in a case action against the Kentucky Army National Guard (KYARNG) which arose from the improper actions taken by state officials in regards to political fundraising and a politically tainted Selective Retention Board (SRB).  Arguments and documentation submitted by counsel are related to all members of the group except as set forth in the specifics of actions requested.

3.  The applicant requests correction of his military records by amending the prior Board’s Recommendations at paragraph 1, subparagraph d and f as noted below, (the requested changes are highlighted in bold type):

d.  by awarding him constructive service credit with award of retirement points at the, rate of 50 points per retirement year (i.e. 12 points for Annual Training, 15 Membership points, and 23 points for drill) at the minimum rate required by law (75 or 78 points per constructive service year, (i.e. 15 points for annual training, 15 points for membership, and 48 points for drill, but with regard to the latter two categories, “not more than 60 days in any one year of service before the year of service that includes September 23, 1996”), and not more than 75 days in any subsequent year of service, plus any additional constructive service and retirement credits beyond these minimums, as determined by ARPERCEN (now known as the Army Reserve Personnel Command (AR-PERSCOM) or the National Guard Bureau (NGB) as appropriate, based on the historical average service for the individual officer, with pay and allowances for each year he is reinstated to the KYARNG.

f.  by showing he was separated and transferred from the KYARNG to the Reserve Control Group based on his MRD [3 October 1999], with due consideration of individual circumstance and, if applicable, any required waiver for satisfaction of age requirements and/or extended mandatory removal date (MRD) based on any promotions by a relook or standby promotion board, and subsequently to the Reserve Control Group Retired Reserve, with placement on the Retired List, effective 21 September 2006, based on his 60th birthday.

4.  The applicant’s counsel states, in effect, that the Board’s prior action, though granting significant relief, did not fully and fairly compensate the applicant for the wrongs committed against him by the KYARNG.  Counsel indicates, in effect, that the granting of the minimum 50 constructive service points is arbitrary and capricious and does not fully rectify the injustice done the applicant.  Counsel contends that the Board should have used the “make whole standard” as cited in Sanders v. United States, 594 F.2d 804,813 (Ct. Cl. 1979) as opposed to the minimum standards for granting a creditable year for retirement purposes and that service credit should be equal to that which he had averaged during his most recent 3-year average.  Counsel contends that the Board did not fully review the minimum requirements for the KYARNG, which requires a higher participation requirement than reflected by the Board’s prior decision.

5.  Counsel also submits a copy of the Defense Finance and Accounting Service (DFAS) calculations and a DFAS cover letter.  These appear to be submitted to insure that any favorable action also includes a notation for DFAS to recalculate and pay any additional benefits to which he may be entitled.

6.  Submitted in support of counsel’s contentions are copies of the following regulations: 10 United States Code (U.S.C.) §12732 and §12733; 32 U.S.C. chapter 5; National Guard Regulation 350-1, chapter 2; a copy of the Assistant Secretary of Defense Memorandum relating to the changes to 10 U.S.C. §12733 enacted by section 531 of the National Defense Authorization Act for Fiscal Year 1997.  Counsel also submits copies of the 14 February 1995 KYARNG memorandum setting forth the revisions to the computation of mandatory removal dates (MRD) and change 4 to NGR 635-100 amending the requirements and procedures for termination of appointment and withdrawal of federal recognition.  Counsel also provides a compilation of personnel data for each member of the group.  

7.  The contentions set forth by counsel constitute new arguments that require Board review.

8.  The 15 December 1999 (AR199702854) review of the applicant’s request is incorporated herein by reference as if wholly set forth.

9.  The applicant’s record shows that, as a drilling guardsman, he earned a career average of 89 points annually.  In the three full years immediately prior to the tainted SRB the applicant earned an average of 79 points (49 points for IDT, 15 points for membership and 15 points for AT as calculated by the staff of the Board from the applicant’s most recent Retirement Points Accounting Statement).

10.  Those points recorded above the statutory maximum for retirement purposes document the periods of IDT and AT for which the applicant would have received drill or active duty pay.  The additional points are reflected for the purpose of determining entitlement to pay and allowances.  Those points above the statutory maximum are to be properly credited for retired pay on the applicant’s date of retirement by the proper retired pay authority.

11.  The applicant was selected for promotion to major (in the Reserves) prior to the tainted SRB and as a result of that board he was not able to compete for a major’s position in the KYARNG.  Following his release from the KYARNG he transferred to the USAR Control Group and was promoted on 9 June 1992. 

12.  DFAS has advised the Board that the implementation of the Board’s recommendation to reinstate the applicant in the KYARNG will result in a demotion back to captain. 

13.  As actions related to considerations other than the service credit (i.e. referral to a special selection board, determination of eligibility of retention beyond MRD) have not received administrative resolution at the AR-PERSCOM or the NGB level they can not be further reviewed at this time. 

14.  10 U.S.C. §12732 (a)(2) establishes three categories of retirement points applicable as (1) one point for each day of annual training (AT) served, (2) one point for each inactive duty training (IDT) period attended and (3) 15 points per year of membership.  

15.  10 U.S.C §12733(3), as amended, limits the combined total points for calculation of retired pay in IDT, correspondence courses and membership to a combined 60 points in any one year prior to the year of service predating 23 September 1996 and not more than 75 points in any subsequent year.

16.  32 U.S.C. § 502 sets forth the requirements for National Guard participation as at least 15 days of AT and at least 48 drill periods annually.

17.  The additional regulations referred to by the applicant’s counsel are not specifically cited as they are either repetitious of the statutes above or reference items that are not currently in an appeal status before the Board.

CONCLUSIONS:

1.  The Board has a responsibility, in cases of this nature, to determine a balancing of relief granted against the fact that the applicant actually rendered no service during the restored period.  It has long been the position of the Board to award only that amount of relief equal to the minimum necessary for creating a creditable retirement year.  This is deemed to be an equitable balancing of what a soldier might have earned and the fact that the soldier actually rendered no service.

2.  However in this case, the Board deems it to be in the interest of justice to grant the applicant additional relief as an exception to its traditional position.  This exception is due to the nature of the injustice, the higher attendance 
requirements of the ARNG, and the demonstrated history of higher than average career service points earned by the applicant throughout his career prior to the tainted SRB action.

3.  Therefore, it would be appropriate to correct the record to show 49 points for IDT, 15 points for membership and 15 points for AT for a total of 79 points annually for the retirement years 1992 until his MRD.

4.  The Board is cognizant that all actions recommended by the Board in its prior decision have not been resolved.  Without action on these items it is inappropriate for the Board to render further comment or direction until such time as those actions are either resolved or formal notification is received that the action can not be accomplished as directed.

5.  It was not the Board’s intent to place the applicant in a situation that would result in a loss of rank, position or promotional consideration.  Therefore, it is appropriate to correct the applicant’s records in such a manner as to allow for the relief directed in the prior decisional document.  

6.  The Board concludes that had the applicant not been affected by the tainted SRB it is most likely that he would have been retained and been promoted in the KYARNG.  

7.  Therefore, it is appropriate to show that the applicant was transferred to the USAR on 8 June 1992, that he was promoted to major on 9 June 1992 and that he served in that capacity until his MRD.  

8.  This action requires correction of the Board’s prior recommendations as noted below. 

9.  The Board’s decision and recommendation does not preclude the NGB and/or AR-PERSCOM from taking independent action to award additional constructive service credit or other benefits that may be deemed appropriate upon final review and completion of all outstanding actions.

10.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would rectify an injustice.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

a.  voiding the applicant’s 3 August 1994 transfer to Retired Reserves; 

b.  showing that the individual concerned was transferred to the USAR on 8 June 1992, promoted to major on 9 June 1992 and served in that capacity until his MRD;

c.  amending recommendation 1d to show service credit at the rate of 49 points for IDT, 15 points for membership and 15 points for AT per service year until his MRD and deleting the words “in the KYARNG”;

d.  paying him any additional monies due as if he had performed those additional IDT and AT periods; and,

e.  amending 1f of the prior Board action to show that following attainment of his MRD that he was separated from the USAR and transferred to the Retired Reserve with placement on the Retired list effective 8 April 2007, based on his 60th birthday;

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

_RVO____  ___RKS_  __DPH_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O'Connor, Jr.
		        CHAIRPERSON

INDEX

CASE ID	AR2000042653	
SUFFIX		
RECON		
DATE BOARDED	20010523	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Grant	
REVIEW AUTHORITY		
ISSUES:        1.	128.00	
2.	129.01	
3.		
4.		
5.		
6.