MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            5 April 2001
	DOCKET NUMBER:   AR2000047076

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

	Mr. Carl W. S. Chun		Director	
	Mr. David E. Weightman		Senior Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar 		Chairperson	
	Ms. Celia L. Adolphi 		Member	
	Ms. Harry B. Oberg		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  The Calendar Year 1996 (CY96) Selective Retention Board (SRB) results be set aside, and reinstatement to his previous status as an Active Guard/Reserve (AGR) officer under Title 32, United States Code (USC), Section 502(f).

APPLICANT STATES:  He states that a SRB held under National Guard Regulation (NGR) 635-102 (Officers and Warrant Officers Selective Retention) does not have the authority to review, evaluate or recommend separation of a Federal AGR officer, as was done in his case.  NGR 635-102 does not take precedence over Army Regulation (AR) 135-18 (The Active Guard Reserve (AGR) Program).  AR 135-18 does not provide for separation from the AGR program based on SRB’s.  He also states that The Commanding General (CG) of the Washington, DC National Guard (DCNG), hereinafter referred to as DC, violated NGB regulations by directing review of his files for SRB purposes out of the normal cycle.  He submits a letter on his own behalf and a comprehensive discussion, with exhibits, in support of his application.

COUNSEL CONTENDS:  Counsel submits three letters in support of the applicant.  On 29 April 1997 counsel submitted a letter containing the applicant’s request to the Board with argument in the applicant’s behalf.  On 3 September 1997 counsel submitted a comprehensive rebuttal to an NGB advisory opinion in this case and a detailed analysis of the procedural requirements and deficiencies pertaining to the application.  On 20 September 2000, after being advised the applicant’s request had been lost, counsel submitted another copy of the request for further action.  Counsel also suggested it is not the applicant’s intent to obtain constructive credit for the service taken away from him, but to serve on active duty in order to earn the benefits to which he would otherwise have been entitled. He also states that should the Board determine that relief is warranted, but that a recall to active duty is not practical, an alternate remedy would be a change to his records reflecting 20 years of active Federal service on the date he would have served for 20 years, with appropriate active and retired pay.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was drafted on 30 August 1966.  While on active duty he attended the officer candidate school at Aberdeen Proving Ground, Maryland.  He was appointed as a Reserve second lieutenant, Ordnance Corps, effective 26 July 1967.

While on active duty he served in Vietnam and attained the rank of captain on 
26 July 1969.  He was separated on 10 May 1972 based on his degree of efficiency and manner of performance of duty requiring release from active duty or elimination from the service.  He was transferred to the Reserve Control Group (Reinforcement).

He was appointed in the California NG effective 26 April 1973.  He transferred to the DCNG 20 February 1975.  He was promoted to major on 10 May 1979.

He entered the AGR program as a major with a report date of 28 October 1985, under Title 32, USC, Section 502(f), and not accessed into the strength of the active Army.  His duty title was Plans and Operation Training Military Support Officer.  He was issued a memorandum of notification of eligibility for retired pay at age 60 on 3 May 1989.  He was promoted to lieutenant colonel effective 9 May 1987, and to colonel effective 6 August 1991.

On 3 June 1994 the Director, Army NG Directorate (DARNG), sent a message to all TAG’s (hereinafter includes the 50 States, the DC, the Commonwealth of Puerto Rico, the Virgin Islands, and Guam (Title 10, USC, Section 10001)), advising them of immediate reinstatement of the SRB, and that the entire over 20-year population would be considered.  It was also stated that formal specific information is forthcoming.

Also on 3 June 1994 the Director of Personnel sent a message to all TAG’s, and all Military Personnel Officers concerning the FY95 SRB.  He provided official notification that the ARNG will reinstate SRB’s for FY95.  He noted that many States (Hereinafter includes the 50 States, the DC, the Commonwealth of Puerto Rico, the Virgin Islands, and Guam) did not hold a board for FY93 and that no SRB’s were held in FY94, and provided special rules for the FY95 SRB’s. He specified that boards should be held prior to the end of FY94, and gave authority to deviate from the normal schedule; that all individuals not selected for retention should be separated or transferred to the Retired Reserve as soon as possible after 1 October 1994; that the FY95 SRB’s would consider all personnel who would have been or will be eligible for consideration from the previously suspended SRB’s through 30 September 1995; and that States would resume normal SRB cycles in FY96.

On 28 March 1995 a memorandum was sent to all States concerning the ARNG AGR Tour Continuation Boards (TCB’s).  It specified that the TCB’s evaluate the performance of AGR personnel and their potential for increased responsibility, 

and will not be used to terminate the AGR orders of personnel who should have been removed from the AGR program under the provisions of Army Regulation 135-18 (The Active Guard Reserve (AGR) Program) and NGR 600-5 (The Active Guard/Reserve (AGR) Program-Title 32, Full Time National Guard Duty (FTNGD)).  As such, TCB’s will not be used to release personnel for Army Physical Fitness Test failure, unsatisfactory or substandard performance or misconduct.

On 5 September 1995 an all States memorandum was sent to all TAG’s concerning the return to the use of the SRB.  It stated the SRB will consider those with 20 or more qualifying years of service, and will include Title 32 AGR personnel, and that Title 32 AGR personnel not selected for retention and not eligible for an immediate annuity may be entitled to full separation pay.  It specified that for enlisted soldiers that to return to a normal schedule of consideration every other year, States would have to review half the records from the CY95 SRB in CY97 and half in CY1998, allowing those retained by the CY95 board at least 2 years between reviews.  It also specified that all officer records would be reviewed either every year or every other year per the pertinent regulation, as determined by the TAG, and that if the TAG elected every year then the SRB would review all records per the regulation.  However, if the TAG elected every other year reviews then the rules for the enlisted SRB’s would be followed if the TAG wished to return to an odd/even process.  It further stated that exceptions may be submitted by 1 November 1995.

There is no record of any requests for exceptions.

The applicant was notified by the CGDCNG that he was selected for retention by the FY95 SRB, and that, “As required by paragraph 5, NGR 635-102, you will be considered again in CY 96.”  The DCNG SRB proceedings also indicated “Officers are recommended for 1 year retention and will be considered again by the 1996 Selective Retention Board.”

The applicant was not selected by the CY96 SRB.

On 16 June 1996 the applicant was provided the available minutes/records of the DCNG SRB’s for CY95 and 96 as he requested.  Other names and social security numbers were deleted from the document provided to the applicant.

The applicant had less than 18 years of active Federal service prior to the results of the SRB.  He requested and was granted an exception to policy and allowed to accept an early retirement under the Temporary Early Retirement Authority.  He received full retirement benefits with immediate annuity.

On 4 December 1996 other available documentation and information concerning the DC SRB’s were provided to the applicant as he requested.

His Federal recognition was withdrawn by the NGB effective 31 July 1996.

He was released from the DC AGR on 31 July 1996 and placed on the Retired List on 1 August 1996.

He had 29 years, 10 months and 1 day of total active and inactive creditable service.

His officer evaluation report (OER) history covering his rank of colonel shows he received four reports.  He was rated below the center of mass on all four reports by his senior rater, and he received two maximum ratings and two below maximum ratings from his rating officer.  His rating officer and senior rater were the same officers on all four reports, serving as the Chief of Staff and the CG, respectively.

NGR 635-102, in effect at the time, provided guidance and procedures for conducting the officer SRB.  It “prescribes policies and procedures for establishing and conducting selection boards used in the ARNG program for selective retention of officers and warrant officers beyond 20 years of qualifying service for retired pay.”  The policy included providing for progression of qualified officers, by retaining the best officers for the comparatively few higher level positions, by providing a career incentive, and by providing the opportunity to serve beyond 20 qualifying years with advancement to higher ranks at the peak years of an officer’s effectiveness.

The regulation provided for, in effect, removal of the less effective officers in order to make room at the top for younger officers.

The regulation specifies that SRB’s will be conducted independently from AGR tour continuation boards in accordance with NGR 600-5.

The regulation specifies that TAG’s are responsible for announcing the frequency of subsequent consideration of all officers, either annually or biennially, and for notifying officers to be considered.

The regulation specifies that Federal recognition for officers not selected for retention by SRB’s will be withdrawn, and unless they elect transfer to the Retired Reserve, the officers become members of the Army Reserve Control Group (Reinforcement).

The regulation was not promulgated pursuant to the AGR program.

The regulation was applicable to all ARNG commissioned officers not in the active Federal service, and, among others, to those on AGR FTNGD status under Title 32.

The regulation was not applicable to commissioned officers in the active Federal service on AGR status under Title 10.

The regulation also specified that SRB’s will make an evaluation of the future benefits that can be expected to accrue to the ARNG from the continued service of each person considered.  It further specified that SRB’s should consider the potential for replacing present senior commanders and staff officers; the adequacy of civilian and military education for performance potential; demonstrated performance as demonstrated by OER’s citing the manner of performance of the officer; and medical condition and physical fitness.

The regulation also provided that “Individuals being considered for selective retention may write letters to the selection board inviting attention to any matter of record concerning themselves that they feel important in the review of their records.”

NGR 600-5 (The Active Guard/Reserve (AGR) Program – Title 32, Full-Time National Guard Duty (FTNGD)) prescribes the policies/procedures for management of ARNG personnel in the AGR program serving on FTNGD under Title 32, USC, Section 502(f), including continuation and separation.  The regulation provides for separation from FTNGD based on non-continuance, and in compliance with AR 135-18.  It specifies that reasons for separation from AGR FTNGD include reaching Mandatory Removal Dates, 20 years of active Federal service, non-selection by an AGR continuation board, and loss of Federal recognition.

Army Regulation 135-18 (The Active Guard Reserve (AGR) Program) prescribes the policy and procedures for the AGR program, including the ARNG serving in the AGR program.  Title 32, USC, Section 502(f), authorizes ARNG officers to serve in the AGR on FTNGD for organizing, administering, recruiting, instructing, or training of the ARNG.  It specifies that this regulation takes precedence over any other regulation promulgated pursuant to the implementation, maintenance and support of the AGR program.

The regulation specifies that personnel not recommended for continuation by a continuation board will be released from FTNGD, as governed by Army Regulation 135-178 (Separation of Enlisted Personnel) and directives published by the Chief, NGB for personnel serving under Title 32, USC.

The above cited regulations contain the following glossary of term definitions:

AGR includes ARNG personnel serving on FTNGD under Title 32, USC, Section 502(f), for 180 days or more for the purpose of organizing, administering, recruiting, instructing, or training the Reserve components, and are paid from NG personnel appropriations.

FTNGD includes training or other duty, other than inactive duty, performed by ARNG personnel in the member’s status as a member of their respective State, under Title 32, USC, Sections 316, or 502-505, for which the member is entitled to pay from the United States or for which the member has waived pay from the United States.  (AR 135-18)

Extended active duty (EAD) is active duty performed by a member of the ARNGUS when strength accountability passes from the ARNG to the Active Army.

Title 32, USC, Section 502(f) provides for members of the ARNG to be ordered to FTNGD.

Active status is the status of a NG commissioned officer who is not in the inactive ARNG, in the Standby Reserve (Inactive List), or in the Retired Reserve.

Active Army personnel include Reserve and ARNG personnel on active duty other than for training or in an AGR status.

Full-time duty in the active military service of the United States does not include AGR personnel in a FTNGD status under Title 32, USC, (AR 135-18).  It applies to officers ordered to duty under Title 10, USC, other than for training.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  In view of all of the circumstances in this case, the applicant is not entitled to have the results of the CY96 SRB set aside, and reinstatement to his previous status as an AGR officer under Title 32, USC, Section 502(f).

3.  The applicant’s contentions, and those of counsel, have been noted by the Board; however, they are not sufficiently supported by his application.  He has not shown that SRB’s held under NGR 635-102 do not have authority to review, evaluate and recommend separation of an AGR officer in the applicant’s status.  The regulation specifically provides for SRB evaluation of AGR officers serving under the authority of Title 32, USC, Section 502(f).  He has not shown that other regulations have precedence.  Also as in this case, the CGDCNG had the authority, as shown by regulation and NGB guidance, to schedule SRB’s out of the normal cycle.  On 3 June 1994, 28 March 1995, and 5 September 1995 the CG was given that authority by NGB officials.  The FY95 SRB selected the applicant for retention for 1 year.  It specified that “Officers are recommended for 1 year retention and will be considered again by the 1996 Selective Retention Board.”  When the CGDCNG notified the applicant of his selection for retention by the FY95 SRB, he also notified him he would be considered by the FY96 SRB.

4.  The Board notes that continuation boards held under AR 135-18 are for the purpose of selection and retention of personnel for the AGR, but does not preclude evaluation by an SRB.

5.  It appears the applicant was properly evaluated for retention in the DCARNG under the proper authority, and he was not selected for retention.  It is noted he had close to 30 years of service when considered by the SRB, serving in the rank of colonel, with below center of mass OER’s for his service in that rank, and apparently at the pinnacle of his career.  It also appears that the applicant was prime for non-selection for retention based on the SRB’s aim to not retain less qualified officers and for the progression of younger officers, and based on his OER’s.

6.  The Board further notes that all qualified officers, as in the applicant’s case, were scheduled for review by the SRB’s, the action was accomplished based on pertinent regulations and policy, and that the applicant requested retirement with immediate annuity as an exception to policy, which was approved.

7.  In view of the foregoing, and as far as the Department of the Army is concerned, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_jh_____  _hbo____  _cla____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000047076	
SUFFIX		
RECON		
DATE BOARDED	20010405	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.