IN THE CASE OF: BOARD DATE: 10 November 2015 DOCKET NUMBER: AR20150000466 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 reinstatement into the Active Guard/Reserve (AGR) Program under Title 32, Full-Time National Guard Duty (FTNGD). 2. The applicant states he was erroneously separated from the AGR on 30 September 2011. He further states: a. The Inspector General (IG) reexamined the files and minutes of his 2011 AGR Tour Continuation Board (TCB) and determined the Virginia Army National Guard (VAARNG) disregarded National Guard Regulation (NGR) 600-5 (The AGR Program, Title 32, FTNGD) by allowing the submission of unsolicited correspondence to the board. b. The VAARNG disregarded NGR 600-5 (twice), they failed to extend his AGR tour to meet his 2015 expiration term of service, and they unjustly granted him a 1-year tour continuation. c. He is a veteran of 16 years of active federal service and he currently serves as a full-time dual status (military technician) of the VAARNG. d. He and his family suffered an injustice, anguish, pain, hardship, and undue suffering when he was erroneously separated from the full-time force of the VAARNG AGR Program on 30 September 2011. He was denied the opportunity to reach retirement from active duty service through the inconsistencies and disregard for military regulations by members of the AGR TCB and those that were responsible for the administration of that board. e. The separation left him unemployed for 6 months. His hope and desire is that this does not occur to another Soldier or veteran of the VAARNG. 3. The applicant provides – * A five page personal statement * Congressional correspondence * VAARNG State IG letter, dated 14 October 2014 * Email referencing the applicant's AGR tour extension/renewal * AGR tour orders * 2010 and 2011 AGR tour renewal packets * Qualitative Retention Board memoranda, dated 15 April 2010 and 21 March 2014 * DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) from 23 June 2007 through 30 September 2011 * DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending on 22 August 2007, 8 May 2008, and 30 September 2011 * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 20 May 2003 * NGR 600-5 CONSIDERATION OF EVIDENCE: 1. The applicant is a sergeant first class (SFC)/E-7 in the VAARNG. 2. He served on active duty as a Regular Army (RA) Soldier from 12 September 1985 to 11 July 1999 and as a VAARNG AGR Soldier from 15 August 2000 to 22 June 2007, 23 June 2007 to 8 May 2008, and 9 May 2008 to 30 September 2011. 3. He was ordered to FTNGD in an AGR status effective 15 August 2000 for an initial three-year commitment. He continued to serve in an AGR status until 1 October 2011 when he was released from active duty (REFRAD). 4. On 27 June 2005, the U.S. Army Human Resources Command issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 5. In a five-page personal statement he indicates, in effect: a. He was denied the opportunity to reach retirement from active duty due to inconsistencies and disregard for Army regulations by members of the AGR TCB and by those responsible for the administration of the board. b. He challenged the process and the board's final decision by invoking AR 600-5 that existed in 2009. In 2011 he was told AR 600-5 no longer existed, but he discovered that AR 600-5 does exist and had not been superseded at the time of his AGR TCB in 2011. c. He entered the AGR Program in 2000 and was mobilized to Federal active duty and deployed to Kuwait from 2007 to 2008. He was demobilized and returned to AGR status in 2008 and served until he was separated from the AGR Program on 30 September 2011. d. His initial AGR tour ended in 2003 and he received a 6-year extension until 2009. In 2009 he requested another 6-year extension until 2015. His request was delayed and his AGR tour was extended through April 2010. e. He submitted another extension request. His commander, Captain (CPT) S______ was told by the Battalion Commander, Lieutenant Colonel (LTC) S____, to only approve an extension of 1 year. No explanation was provided. He was given AGR extension orders for 1 year from May 2010 to June 2011. These orders do not meet the guidance in NGR 600-5, paragraph 2-6a, Format 175. f. Since he was only given a 1 year extension, he submitted another tour renewal request in February 2011. Once again there were delays and no determination was made, so orders were issued on 31 March 2011 extending his AGR tour through 30 September 2011. g. In July 2011, he was given a form by the rear detachment command sergeant major (CSM). The form stated, "Non-retention in the AGR Program." The body of the form stated, "No improvements made and counselings from your commander." In a phone conversation with LTC S____ the applicant asked what improvements and counseling he was referring to. He told LTC S____ that he never received any negative counseling on making improvements. h. LTC S____ stated there was a letter from Major (MAJ) K_______, the S-3 for 3rd Battalion, 116th Infantry. The letter contains several derogatory comments about the applicant's performance as the Readiness NCO. The applicant was confused and asked why that letter was in his packet and how MAJ K_______ would know he had submitted a tour continuation packet. MAJ K________ was neither in the applicant's rating scheme nor in his chain of command. He felt that LTC S____ was obstructing the administrative process; why else would MAJ K_______ offer an unsolicited letter that happened to be in the applicant's packet? i. His commander, CPT S______, endorsed both of the applicant's AGR tour continuation packets. The commander told the applicant that he was not asked to submit any counseling statements with either of the packets. j. According to the AGR Tour Continuation Checklists for 2010 and 2011, counselings are not solicited, only the records of the AGR Soldier requesting tour continuation. k. The applicant interprets "records" for the purpose of the tour continuation application as "solicited" supporting documentation that can be readily accessible through the official military information systems and personnel files and not records that can be considered "unsolicited" attorney-client communications, employee to supervisor communications like counseling, recommendations, and sworn statements. l. He spoke with MAJ G______, the human resources supervisor, to discuss the 2009 version of NGR 600-5. The applicant told her that it showed the board process was not conducted per the regulation. She indicated that it was an old regulation and they didn't use it anymore. She did not provide a reference that did govern the AGR Program, instead she offered the flippant response that it was too late and if he knew that they were trying to get rid of him he should have left the position and found another job. m. In July 2011, the applicant filed a complaint with the Assistant IG, Master Sergeant (MSG) D______, about the process the board used to make their decision and mentioned the regulation to him. MSG D______ later contacted the applicant and told him that Colonel (COL) J______, the IG, reviewed the applicant's NCOER's and saw nothing that would sway her opinion on the board's decision. MSG D______ indicated he tried to explain to COL J______ that they were all good NCOER's: no negative bullets or needs for improvement were noted. The IG found no issue with how the board was conducted. n. The applicant requested to meet with the State Adjutant General, Brigadier General (BG) L___. Instead, in August 2011, he met with Sergeant Major (SGM) G___, the State SGM; SGM H______; and the CSM who handed the applicant the non-retention letter. In the meeting SGM G____ would not let the applicant review the packet; he read parts of an email and one counselling from the applicant's 1SG in 2008 that the applicant non-concurred with. When asked why they were looking at old information, SGM G____ stated they had to look at everything. The applicant then accepted an offer to see the State Adjutant General. o. After the meeting, the applicant was concerned as to why the board was using unsolicited documents of events that occurred in 2009 for a 2011 AGR TCB. The AGR Tour Continuation Checklist does not mention the inclusion of any counseling. NGR 600-5 states, "AGR Continuation Boards will not be used to terminate the AGR orders of Soldiers who should have been removed from the AGR Program under the provisions of paragraph 6-4 or 6-5 (separation for cause and procedures) of this regulation." p. When he was extended for 1 year in 2010, there was no mention of any counseling or the lack of improvements being made; now several months later in 2011, he was non-retained based on those two factors. q. The applicant met with BG L___ in September 2011, and his commander and 1SG spoke on his behalf. The meeting proved to be exasperating. r. He was still not afforded the opportunity to be retained in the AGR Program. He feels he used every option available to him and no one said that NGR 600-5 was the regulation used to justify his non-retention in the AGR. s. Now that he discovered he was not told the truth, he decided to pursue this injustice. He feels that some leaders of the VAARNG were granted creative freedom to inject their own rules and policies into the AGR retention program. t. The IG reexamined his file and concluded that NGR 600-5 was the governing regulation and was used to provide guidance to the continuation board. However, the board disregarded the guidance in the regulation by allowing unsolicited correspondence to be admitted along with his tour continuation packet. u. He requests reinstatement as a member of the AGR and FTNGD retroactive to 1 October 2011 with all appropriate back pay and allowances. 6. The applicant's records contain an NCOER for the period 1 October 2009 through 30 September 2010. The Rater and Senior Rated show ratings of "excellence" and "success." The Reviewer, LTC S____, the Battalion Commander indicated he nonconcurred with the Rater and Senior Rater Evaluations and provided the following comments: Do NOT concur with the excellence rating for Responsibility & Accountability and Among the Best for overall potential for promotion and/or service in positions of greater responsibility. As the full time manning (FTM) supervisor for Company F, 429th BSB personnel, the applicant did not ensure the unit maintained 100% accountability of equipment. As the Senior FTM supervisor he is not providing overall guidance and management of the full time force for Company F, 429th BSB. This was evident during the CLRT (Command Logistics Review Team) preparations there were numerous instances where unit equipment was not properly accounted for and deficiencies not properly documented or corrected. As platoon sergeant, (the applicant) fails to ensure proper PMCS IAW (in accordance with) Army Standards. There is lack of overall oversight/management as a platoon leader during individual active duty training weekends. 7. A 14 October 2014 VAARNG State IG letter states, in part, that while the applicant's August 2011 request to the IG concerning issues with his AGR TCB had been determined to be unfounded, after reexamining the file and reflecting on the governing regulation, NGR 600-5, reasonable persons could form a different opinion. a. According to the official minutes from the 12 July 2011 AGR TCB concerning the applicant, "The board members determined that the Soldier does not possess potential for increased responsibility as attested by his NCOERs, counseling statements, and input provided by his commander and full time supervisor." b. A reasonable interpretation of NGR 600-5 could conclude that the counseling statements and input provided by commanders and supervisors were all unsolicited correspondence and should not have been included in the board. c. The applicant was advised he could petition the ABCMR if he believed there are inaccuracies in his record based on error or injustice. 8. In the processing of this case, an advisory opinion was received from the Deputy Chief Personnel Policy Division, National Guard Bureau (NGB) on 29 May 2015. The advising official recommended disapproval of the applicant's request and stated: a. The applicant's first 3-year AGR tour ended 14 August 2003. He was granted orders for six additional years with a tour end date of 7 August 2009. He was given additional extensions up to 30 April 2011. The recommendation and granting for the applicant to extend for 1 year was a courtesy in lieu of the board not being held by the State in fiscal year 2010 (FY10) from October 2009 to September 2010. b. Although the IG did a second review of his complaint to readdress the alleged solicitation of documents for the applicant's retention on the AGR Program, it was found that all documents reviewed by the board were part of the applicant's interactive Personnel Records Management System (iPERMs) file, to include the Non-Concurrence Memorandum for the NCOER signed by his Reviewer. Therefore, all documents reviewed by the AGR TCB are valid for review and not considered unsolicited. The VAARNG AGR TCB results stand. A memorandum from the VAARNG Director of Manpower and Personnel, dated 8 March 2015 states in part, NGR 600-5, paragraph 2-6 provides that enlisted Soldiers' periods of active duty will coincide with their enlistment or reenlistment agreements. The applicant's orders were only extended for 1 year instead of 5 years. 9. A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. On 15 July 2015, the applicant provided the following rebuttal: a. The advisory opinion memorandum states he was given two additional extensions dated up until 30 April 2011; recommendation and granting for him to be extended for one year was a "courtesy in lieu" of the board not being held by the State in FY10 from October 2009-September 2010. (1) The VAARNG falsely portrays that he was given two additional extensions. Their statement is inconsistent and in conflict with order formats. One order has Format 175 (tour extensions) and three orders have Format 700 (amendments). Further NGR 600-5 makes no allowance or exception for a courtesy (extension) in lieu of any board not being conducted. The 1 year extension violates NGR 600-5 as it makes no allowance for altering tour lengths. (2) The VAARNG also makes a false statement when it claimed a board was not held in FY10 (October 2009 – September 2010). A board was referenced in two emails sent to the applicant from a human resources specialist in November 2009 and January 2010. At the conclusion of the AGR TCB, a 1 year extension order was published in March 2010. (3) Who has the authority to deviate from an NGR? Who approved a recommendation to create a 1-year order that violates an NGR? b. NGR 600-5, chapter 5, paragraph 5-1 (General) provides that AGR TCB's will be established at State level to review and evaluate the records of AGR Soldiers in the third year of their initial tour of duty, and every fifth year thereafter for continuation in the AGR Program. The VAARNG, though its inconsistencies and mismanagement of the AGR Program, failed to hold a board after the applicant's fifth year in 2008, then again in 2009. (1) What was so unique about the applicant's AGR tour continuation request that the VAARNG deviated from an accepted practice of not holding a board in 2008 and 2009, then required a special board to convene in 2010 just to review his AGR continuation request? (2) What were the reasons for the delays that caused the VAARNG to amend his AGR orders in August 2009 and November 2009 for aboard that was not held on either occasion? (3) Did other Soldiers during this same time span receive the benefit of a tour renewal, but without an AGR TCB being held? c. NGR 600-5, chapter 5, paragraph 5-1 further states the Board will evaluate the performance or AGR Soldiers and their potential for increased responsibility as attested by NCOERs and academic reports. During this period, the applicant was selected by the Enlisted Qualitative Retention Board that assesses demonstrated abilities to accept responsibilities and perform current and higher level assignments. He was recommended as "among the best" qualified for continued retention in the ARNG in April 2010, June 2012 and March 2014. d. Paragraph 3c of the advisory opinion memorandum states a second review was given by the IG to readdress the alleged solicitation of documents for the applicant's retention in the AGR Program. e. The statement in paragraph 3c of the advisory opinion states an incorrect representation of his request. The purpose of the original request and subsequent reexamination was not to address the alleged solicitation of documents, but rather to determine if the allowance by the AGR TCB to view and consider derogatory and unsolicited correspondence or documents was in violation of NGR 600-5. The applicant believes the IG response substantiates his argument because unsolicited correspondence, or the commander's recommendations, which contain criticism or reflect upon the character or motives of any AGR Soldier will not be given to the board. f. Paragraph 3c of the advisory opinion memorandum makes the claim that it was found that all documents reviewed by the board were part of the Soldier's iPERMS file. As of this date he has not located within the contents of his iPERMS any counseling statements or said input provided by the commander and full time supervisors, as noted by the official minutes of the 12 July 2011 AGR TCB; to include unfavorable letters that were read to him by LTC S____ and SGM G____, as addressed in the applicant's ABCMR application. The AGR TCB is in violation of NGB 600-5 as it knowingly reviewed unsolicited and unfavorable documents that were not allowable for review by the TCB per NGB 600-5. The unsolicited documents were somehow married up with his AGR packet as it made its way to the TCB. This decisional information may have formed the basis for the determination of his non-retention in the AGR Program. g. Both the 2004 and 2014 versions of AR 600-8-104 (Army Human Resource Records Management) point to the performance folder as the primary folder for review by selection boards. Table 3-1 of AR 600-8-104, dated 2014, specifically says the primary purpose of this folder is to provide necessary information to officials and selection boards tasked with assessing Soldiers for promotion, special programs and tours of duty. It also populates board related applications for the National Guard Army Board System. Any records or correspondence not solicited by the AGR TCB checklist and viewed outside of the individual's performance folder are considered unsolicited and are in violation of AR 600-8-104, chapter 2, paragraph 2-3a (2004 version) and chapter 3, table 3-1 (2014 version). h. Army Regulation 600-37 (Unfavorable Information) makes allowances for unfavorable information to be filed in an official military personnel file (OMPF). The NGB and VAARNG both agree through their admission that "all documents" were in his iPERMS record. The type of unsolicited information which was used to make a determination by the TCB should have been referred to him prior to filing in his iPERMS record or being allowed to be mixed in with his AGR packet. The unsolicited and unfavorable documents were not referred to him and he had no prior knowledge, no opportunity to review or rebut the unfavorable information provided to the 2011 AGR TCB that evaluated his packet which violated AR 600-37. i. The non-concurrence memorandum signed by the reviewer was submitted for the rated period 1 October 2009 through 30 September 2010 and was provided to the AGR TCB. (1) The reviewer specifically mentions his non-concurrence with Part IVf and Part Va of the NCOER and submits no other objections. Please note the scope of the reviewer's argument surrounds CLRT preparations, which occurred in October 2010. Therefore, the basis for his argument has no merit, because CLRT preparations and the actual CLRT inspection occurred during the applicant's subsequent rating period, October 2010 through September 2011. The unit passed the CLRT inspection, as attested by his NCOER for that period. (2) The deficiencies discovered during the CLRT "preparations" were minor and were immediately corrected. From time to time cook serving utensils and miscellaneous items will get absorbed or thrown out with the trash. Cook section personnel did not have senior leadership and were unfamiliar with the shortage annex. Missing items were listed on their annex and were placed on order. A few members of the transportation team took shortcuts and did not use the technical manuals to properly record deficiencies on the required form. They were directed to fix their entries and correctly record the deficiencies. (3) Furthermore, the reviewer failed to clarify the situation in his memorandum and failed to provide any counseling or tangible or quantifiable documentation that substantiates his argument for non-concurrence with the NCOER in question. 10. NGR 600-5 prescribes policies procedures for management of Army National Guard (ARNG) Soldiers in the AGR Program who serve on FTNGD under the provisions of section 502(f), Title 32, United States Code. a. Paragraph 5-1 provides that AGR Continuation Boards will be established at State level to review and evaluate the records of AGR Soldiers in the third year of their initial tour of duty, and every fifth year thereafter, for continuation in the AGR Program. The Board will evaluate the performance of AGR Soldiers and their potential for increased responsibility as attested by OERs, NCOERs, and academic reports. Performance evaluations will be submitted on those AGR Soldiers not requiring an NCOER. It is not the responsibility of the Board to screen AGR records to NGR determine whether they have met the administrative requirements of the AGR Program. AGR Continuation Boards will not be used to terminate the AGR orders of Soldiers who should have been removed from the AGR Program under the provisions of paragraph 6-4 or 6-5 of this regulation. Only those determined by the Board to be fully qualified for continuation will be so recommended. b. Paragraph 5-3 (AGR Continuation Boards) states that Adjutants General will appoint and convene AGR Continuation Boards. (1) Paragraph 5-3b(3) states that unsolicited correspondence including commander recommendations which contain criticism or reflect upon the character, conduct, or motives of any AGR Soldier will not be given to the Board. (2) Paragraph 503b(6) states the Continuation Board will determine the reasons for non-continuation of AGR Soldiers and provide them to the Adjutant General. 11. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. The regulation states in: a. Paragraph 1-11 (Commander's Inquiry (CI)) states when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The CI will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by Headquarters, Department of the Army, and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. b. Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the applicant. DISCUSSION AND CONCLUSIONS: 1. The applicant contends he should be reinstated to AGR FTNGD. He contends he was erroneously separated from the AGR on 30 September 2011, and the VAARNG disregarded NGR 600-5 by allowing the submission of unsolicited correspondence to the board. 2. The applicant disputes the comments included in the non-concurrence memorandum the Reviewer provided with his NCOER for the period 1 October 2009 through 30 September 2010. This document is filed with the NCOER in the applicant's OMPF. An NCOER that has been accepted for filing in the OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. There is no available evidence showing the applicant disputed the NCOER or requested a CI at the time the report was rendered. * 3. The IG, following reexamination of the applicant's complaint, reported the board members determined that the applicant did not possess potential for increased responsibility as attested by his NCOERs, counseling statements, and input provided by his commander and full time supervisor. A reasonable interpretation of NGR 600-5 could conclude that the counseling statements and input provided by commanders and supervisors were all unsolicited correspondence and should not have been included in the board. 4. The governing regulation states one of the tools used by AGR Continuation Boards will be to evaluate the performance of AGR Soldiers and their potential for increased responsibility as attested by NCOERs. The NCOER of the period 1 October 2009 through 30 September 2010 was available for review by the Board. 5. Thus, while unsolicited documentation may have been used by the AGR TCB that resulted in the applicant's non-retention in the AGR Program, the same information was available in an NCOER with a Reviewer non-concurrence statement. 6. The available evidence does not support reinstating the applicant to FTNGD. 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 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150000466 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1