IN THE CASE OF: BOARD DATE: 17 December 2015 DOCKET NUMBER: AR20150003343 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 in the Alabama Army National Guard (ALARNG) Title 10 Active Guard Reserve (AGR) Program as a colonel (COL) effective 31 July 2012. He also requests full pay and allowances retroactive to 31 July 2012. 2. The applicant states: a. The U. S. Army Inspector General (IG) Case File ROI 13-001 substantiated allegations that the Army National Guard (ARNG) Calendar Year (CY) 2011 Release from Active Duty (REFRAD) Board was not properly conducted in accordance with prescribed procedures by a preponderance of the evidence. These actions led to his early release from the Title 10 AGR Program and subsequent retirement 58 months prior to his mandatory removal date (MRD). b. Full reinstatement in the AGR Program affords him the opportunity to remain in an active status until he reaches his MRD on 3 June 2017. 3. The applicant provides his: * National Guard Bureau (NGB) memorandum, subject: Non-retention for Continued Service in the Title 10 AGR Program * REFRAD orders * DD Form 214 (Certificate of Release or Discharge from Active Duty) * IG letters with a copy of the IG Report of Investigation (ROI) CONSIDERATION OF EVIDENCE: 1. The applicant is a retired ARNG COL. 2. A 3 August 2011 NGB memorandum notified the applicant that his records were reviewed by the CY11 ARNG AGR Officer REFRAD Board and he had been selected for release from the Title 10 AGR Program. 3. NGB Orders 219-5, dated 6 August 2012, show he was REFRAD and placed on the retired list effective 31 July 2012 as a COL. 4. A DD Form 214 shows he was retired due to sufficient service on 31 July 2012 as a COL. 5. A 19 November 2013 IG letter informed the applicant that the IG had substantiated the allegation that Major General (MG) (Ret) Raymond C________, former Acting Director, ARNG, NGB, had improperly conducted the CY11 REFRAD Board. The IG evidence established that the REFRAD Board was not conducted in accordance with required procedures. He was informed he could request a copy of the investigation records under the Freedom of Information Act. 6. An 11 March 2014 IG memorandum provided him a copy of the IG ROI. The ROI related that multiple complaints were received concerning the conduct of the REFRAD Board. The report substantiated the allegation that MG (Ret) C________ conducted the REFRAD Board improperly. 7. In the processing of this case, an advisory opinion, dated 2 April 2015, was obtained from the Chief, Officer Division, Office of the Deputy Chief of Staff, G-1. The advisory official recommended approval of the applicant's request and stated: a. The applicant requests reinstatement into the ARNG Title 10 AGR Program with retroactive award of all pay and allowances he would have otherwise received. b. The applicant, an ALARNG officer, was commissioned on 5 June 1987 and subsequently entered the ARNG Title 10 AGR Program on 1 December 1992 serving continuously until 31 July 2012. His MRD based on maximum years of commissioned service under the provisions of 10 USC 14507(b) is 1 July 2017; and his MRD for maximum age (age 60 by Army policy) is 1 September 2023. c. The AGR Program is administered as a career program in accordance with Department of Defense Instruction. 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. 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. d. A review of the applicant's Official Military Personnel File (OMPF) and documentation submitted with his application for relief confirms that he was considered and selected for REFRAD by the CY11 ARNG AGR REFRAD Board. Based upon 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. He elected to apply for retirement and was REFRAD on 31 July 2012, and retired effective 1 August 2012. e. Subsequent to approval of the CY11 ARNG AGR REFRAD Board, the DA IG received three separate complaints alleging MG (Ret) C________, Acting Director, ARNG, conducted the REFRAD Board improperly. DAIG ROI 13-001 substantiated the allegations, and the officers who were released were notified by the DAIG that the CY11 ARNG AGR REFRAD Board was not conducted in accordance with required procedures. f. A review of the redacted ROI 13-001, provided to the applicant by the DAIG and included with his application for relief, confirms that he did not receive fair and equitable consideration for retention in the Title 10 AGR Program along with all other officers in the zone of consideration. Except for his selection for REFRAD by the CY11 ARNG AGR REFRAD Board or a subsequent REFRAD board, it is reasonable to assume he would have otherwise continued in active service until reaching his MRD for maximum years of commissioned service (1 July 2017). g. Based upon the facts as outlined above, the Army G-1 recommends approval of the application for relief that he be reinstated into ARNG Title 10 AGR Program and the following corrections to his official military records be made as follows: (1) That his 31 July 12 DD Form 214 be revoked. (2) That NGB Orders 219-5, dated 6 August 2012, be revoked. (3) That NGB Special Orders 355 AR, dated 5 October 2012, as it pertains to the applicant, be revoked. (4) That ALARNG Orders 278-565, dated 4 October 2012, be revoked. (5) That NGB Form 22 (NGB Report of Separation and Record of Service), effective 31 July 2012, issued by the ALARNG, be revoked. (6) That the ALARNG correct the applicant's ARNG retirement points statement (NGB Form 23) to reflect he has earned active duty points for each day of each calendar year, plus any fractional amounts less than a year, and active status membership in the ARNG, from 1 August 2012 and to the date of his reinstatement to active duty in the ARNG Title 10 AGR Program. (7) That the NGB provide the ALARNG authorization for a temporary additional Table of Distribution and Allowances (TDA) position in the grade of colonel on the Joint Forces Headquarters manning document for the applicant's reinstatement into the ALARNG. (8) That the applicant receive the pay and allowances, paid from National Guard Personnel, Army (NGPA) AGR funds he would have otherwise received based upon his last duty assignment, for the period from 1 August 2012 through the date of his reinstatement, less the amount received in retired pay during the same period. h. Recommend The Adjutant General, ALARNG; the NGB, and the Defense Finance and Accounting Service (DFAS) be furnished a copy of the board's decision in order to effect correction to his military and pay records, as applicable. 8. On 12 April 2015, 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. A response was not received. DISCUSSION AND CONCLUSIONS: 1. The applicant contends he should be reinstated in the ALARNG Title 10 AGR Program as a COL effective 31 July 2012 and that he remain on active duty until his reaches his statutory MRD based on years of commissioned service. He also requests full pay and allowances retroactive to 31 July 2012. He alleges the CY11 Title 10 AGR Program Board was improperly conducted. 2. The applicant was selected for release from the Title 10 AGR Program by the CY11 Title 10 AGR Program Board. He was REFRAD on 31 July 2012. 3. The DA IG substantiated his allegation that the REFRAD Board was conducted improperly. 4. The G-1 advisory official recommended the applicant's reinstatement in the ALARNG Title 10 AGR Program as a COL retroactive to 31 July 2012 with appropriate back pay and allowances and subsequent separation at his MRD for commissioned years of service. 5. In view of the above, the applicant's request should be granted. BOARD VOTE: ____X___ ____X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _________ _______ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by: a. revoking his 31 July 12 DD Form 214; b. revoking NGB Orders 219-5, dated 6 August 2012; c. revoking the portion that pertains to the applicant of NGB Special Orders 355 AR, dated 5 October 2012; d. revoking ALARNG Orders 278-565, dated 4 October 2012; e. revoking the NGB Form 22, effective 31 July 2012, issued by the ALARNG; f. requiring the ALARNG to correct the applicant's ARNG retirement points statement to reflect he has earned active duty points for each day of each calendar year, plus any fractional amounts less than a year, and active status membership in the ARNG from 1 August 2012 to the date of his reinstatement to active duty in the ARNG Title 10 AGR Program; g. requiring the NGB to provide the ALARNG authorization for a temporary additional TDA position in the grade of COL/pay grade O-6 on the Joint Forces Headquarters manning document for the applicant's reinstatement into the ALARNG; h. paying the applicant the applicable pay and allowances, paid from NGPA AGR funds, he would have otherwise received based upon his last duty assignment, for the period from 1 August 2012 through the date of his reinstatement, less the amount received in retired pay during the same period; and i. providing The Adjutant General, ALARNG; the NGB, and DFAS a copy of the board's decision in order to effect correction to his military and pay records, as applicable. ___________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) AR20150003343 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1