BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20150005798 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 a "partial pension" and receipt of permanent tri-service medical care (Tricare) benefits. 2. The applicant describes his military service in detail to include his appointment in the U.S. Army Reserve (USAR), entry onto active duty in an Active Guard Reserve (AGR) status, promotion to lieutenant colonel (LTC), and eventual separation from active duty and transfer to the Retired Reserve by reason of completion of maximum years of service. He argues that in contrast to other career Soldiers, he was: * not warned or counseled as other AGR Soldiers had been about the possibility that he would reach his mandatory removal date (MRD) before qualifying for an active federal service (AFS) pension * retroactively excluded from continued service as a warrant officer * excluded from a board that would have qualified him for a partial retirement under TERA by 16 days * denied an extension of his MRD by the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA (M&RA)) or a partial pension after 10 years of AFS * treated inequitably because other Soldiers were provided similar remedies * separated without an AFS pension after having been retained in career AGR status beyond the 6-year initial probation period that requires management to ensure eligibility for a full AFS pension in accordance with Department of Defense (DOD) instructions and Army regulations 3. The applicant provides: * Officer Record Brief * orders (and amendments) for entry into the AGR program * multiple DA Forms 1506 (Statement of Service) * separation, retirement, and release from active duty orders * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DOD Directive 1205.18, subject: Full-Time Support (FTS) to the Reserve Components * request for extension of MRD * orders to indefinite service * multiple email exchanges * extracts of selected regulations, directives, and instructions CONSIDERATION OF EVIDENCE: 1. The applicant was born on 23 September 1966. He will turn 60 years of age on 23 September 2026. 2. Having prior enlisted service, he was appointed as a Reserve commissioned officer of the Army and the Illinois Army National Guard (ARNG) and executed an oath of office on 14 June 1986. 3. He served in a variety of assignments and he was honorably discharged from the ARNG on 19 August 2000. He was transferred to the 85th Training Division, USAR. 4. He entered active duty as a member of the USAR in support of Operation Noble Eagle on 10 October 2001 and served in area of concentration 15B (Aviation, Combined Arms Operations). 5. He was honorably released from active duty on 25 March 2004 and returned to the 85th Training Division. He completed 2 years, 5 months, and 16 days of active service. 6. On 3 March 2004, the U.S. Army Human Resources Command (HRC) published Orders R-03-461571 ordering him to active duty in an AGR status for a period of 3 years reporting on or about 25 April 2004 to the 11th Military Police Brigade, Ashley, PA. An amendment to these orders stipulated that he would not perform aviation services and would be authorized aviation career incentive pay. As ordered on 25 April 2004, he entered active duty in an AGR status. 7. On 26 May 2004 HRC issued him a notification of eligibility for retired pay at age 60 (20-year letter). 8. On 7 December 2006 he was promoted to LTC. This action established his MRD based on 28 years of commissioned service in accordance with Title 10, U.S. Code, section 14507. 9. In February 2007, he received official notification that he was reaching the end of his initial 3-year tour in the AGR Program. In accordance with Army Regulation 135-18 (The AGR Program), paragraph 2-4, and memorandum, Headquarters, Department of the Army (DA), dated 6 June 1998, subject: Exemption from the Requirement to Hold USAR AGR Officer Continuation Boards, he was eligible for continuation in an indefinite status and had been approved by the Director, Army Reserve Active Duty Management Directorate (ARADMD) for continuation. By accepting indefinite status, he agreed he would incur a 1-year active duty service obligation from his original release date and was subject to worldwide assignment according to the needs of the AGR Program and the Army Reserve. 10. He served in a variety of assignments and locations including Brigade S-1, 11th Military Police Brigade, Ashley, PA; Deputy Chief of Staff, G-1, 11th Aviation Command, Fort Knox, KY; Detailed Inspector General and later Acting Command Inspector General, 84th Training Command at Fort Knox, KY; Brigade Executive Officer and Deputy Commander of the 181st Infantry Brigade, Fort McCoy, WI. 11. On 30 January 2014, he executed a statement of understanding acknowledging that he may be removed from AFS before reaching eligibility for retired pay by the end of the requested extension per Army Regulation 135-180 (Retirement for Non-regular Service), paragraph 2-1, if he was unable to complete 20 years of AFS by the end of the requested extension. 12. On 26 February 2014 he requested voluntary retirement under TERA with an effective date of 30 June 2014. His brigade commander and his commanding general recommended approval. 13. The ASA (M&RA) disapproved the applicant’s request for TERA and retention beyond his MRD. The ASA (M&RA) denial letter states: a. The applicant’s request for early retirement under TERA and Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) is disapproved. He is ineligible for TERA since his non-selection for promotion to colonel does not deny him continued service on active duty in the AGR program and he will not qualify for a 20-year AFS retirement before reaching his MRD. b. The request to retain him beyond his MRD through 1 July 2019 pursuant to Title 10, U.S. Code, section 14507 and 14701 and as an exception to Army Regulation 135-155, paragraph 4-34(a) is disapproved. There is no shortage of LTCs in the AGR program and his retention is not in the best interest of the Army. 14. On 28 February 2014, HRC published Orders C-02-491559 releasing him from active duty effective 30 June 2014. A second order, Orders C-02-402763, was published releasing him from the USAR and transferring him to the Retired Reserve effective 1 July 2014 by reason of having completed the maximum years of service (emphasis added). 15. Accordingly, he was honorably released from active duty on 30 June 2014 and he was transferred to the USAR Control Group (Reinforcement) by reason of having completed his required service. His DD Form 214 shows he completed 10 years, 2 months, and 6 days of active service this period and had 5 years, 6 months, and 6 days of prior active service for a total of 15 years, 8 months, and 12 days. Per his DD Form 214, the applicant received separation pay. 16. In the processing of this case an advisory opinion was received from the Office of the Deputy Chief of Staff, G-1, on 18 August 2015. The G-1 official recommended disapproval of the applicant's request. He stated: a. The applicant contends that he was not warned or counseled as other AGR Soldiers had been about the possibility that he would reach his MRD before completing 20 years AFS while in an AGR status, that he was retroactively excluded from continued service as a warrant officer by 6 months, that he was excluded from a board that would have qualified him for partial retirement under TERA by 16 days, that he was denied by the ASA (M&RA) an extension of his MRD or a partial pension after 10 years AFS, and that he was separated without a regular pension after having been retained in a career AGR service beyond the 6 year milestone requiring management into pension eligibility in accordance with DOD instructions and Army regulations. b. While he contends he was never warned or counseled about the possibility of reaching his MRD prior to completing 20 years of AFS, based on his duty performance in Army human resources career management and professional development of officers, he should have been aware of Army Regulation 140-30, (Active Duty in Support of the USAR/AGR Management Program) dated 1 September 1994, paragraph 6-1, which states, "AGR officers should be aware that they are not guaranteed either 20 years AFS or active duty until reaching MRD." Additionally, based on his experience and training it is presumed he understood how the AGR officer management program is structured and managed within the statutory framework of Reserve officer career management provided in Subtitle E-Reserve Components, Title 10, U.S. Code, and implemented in applicable Army regulations including Army Regulation 600-8-24 (Officer Transfers and Discharges). c. Army Regulation 600-8-24, paragraph 2-23d states, "A Reserve Component (RC) LTC not recommended for promotion to colonel will be separated not later than the last day of the month in which he or she completes 28 years of commissioned officer service (10 U.S. Code 14507(a)." Even if he had not held significant human resources management positions for a number of years, he should have discovered the effect of his MRD on his career goals via self-development as outlined in Army Regulation 350-1 (Army Training and Leader Development), paragraph 1-11 c, which states, "The Soldier or Army Civilian must commit to a lifetime of professional and personal growth focused on staying at the cutting edge of their profession. The Army defines self-development as planned, goal-oriented learning that reinforces and expands the depth and breadth of an individual's knowledge base, self-awareness, and situational awareness. Self-development will complement what has been learned in the classroom and on the job, enhance professional competence, and help meet personal objectives." In this aspect of self-development an officer participates in his or her own career management and understands the limits of his or her career based upon current grade and promotion status. d. The applicant stated he was retroactively excluded from continued service as a warrant officer by 6 months due to the Army Reserve G-1's policy directive, dated 21 December 2012. This office cannot address the criteria specified in the policy directive limiting transition of commissioned officers to warrant officer grades to officers with more than 2 years before reaching their MRD. However, it appears the policy is focused on fulfilling the needs of the Army Reserve warrant officer program and not to be used as an avenue solely for commissioned officers to continue serving in another capacity when faced with impending transfer or discharge due to their MRD. In any case, policies are effective on the date of publication unless otherwise specified and the policy appears to have been properly applied to him. e. The applicant stated he was excluded from an AGR release from active duty (REFRAD) board that would have qualified him for partial retirement under TERA by 16 days. The determination of the zone of consideration for any centralized selection board is made based upon the needs of the service and is not set in order to include or exclude any one individual. He is incorrect in his contention that had he been considered and selected for REFRAD he would have been eligible for TERA. In the 12 April 2012 Under Secretary of Defense for Personnel and Readiness (USD P&R) policy memorandum, subject: TERA Procedural Guidance, it states "TERA should be used to retire members who are excess to Service short term and long term needs and who, absent the availability of TERA, would have been expected to qualify for a 20-year retirement." This limitation was addressed within All Army Activities (ALARACT) message 281/2012, subject: TERA and further reiterated in Military Personnel (MILPER) Message 13-231, TERA, paragraphs 4c and 6c, respectively, which state, "All Soldiers must meet all eligibility requirements for retirement for length of service for a 20-year retirement...exceptions to other eligibility requirements will not be considered. In all cases, early retirement will not occur prior to attainment of 15 years of service on the established separation date." Since the applicant would reach his MRD before he would qualify for a 20-year AFS retirement, he was disqualified for retirement under TERA. f. The applicant stated that he was denied by the ASA (M&RA) an extension of his MRD or a partial pension after 10 years of seeing others provided similar remedies. He also contends other AGR officers were afforded "MRD extensions and deployments that bridged them into sanctuary." While this contention may be true, individual personnel actions, including MRD extensions, are based upon the needs of the service, the match of an officer's qualifications to the requirement, the willingness of the officer to perform the required mission or service, and in some cases, the timing of the requirement with regard to the officer's career. The ASA (M&RA) disapproved his request for TERA because he was ineligible, and disapproved his MRD extension request because he deemed the applicant's retention was not in the best interest of the Army. g. The applicant further contends he was separated without a regular pension after having been retained in career AGR service beyond the 6 year milestone requiring management into pension eligibility in accordance with DOD instructions and Army regulations. As he indicates, DOD Directive 1205.18, subject: FTS to the Reserve Components, states "AGR programs in each Military Service will be administered as career programs that may lead to a military retirement after attaining the required years of AFS." It is important to note the guidance states "may" rather than "will" lead to a military retirement. This is because there can be no guarantee or statement of a Service member's prequalification for retirement solely for entry into or continuation beyond the probationary period in the AGR Program. Each Service member must attain 20 years of AFS in order to be qualified for retirement based on sufficient length of service. Upon entry into the AGR Program, no AGR personnel are guaranteed an AFS retirement. 17. The applicant responded with a rebuttal on 30 September 2015. He first notes that the G-1 opinion does not deny that others were provided the remedies he described in his first letter, and therefore does not outright dispute his claim of inequitable treatment. His alleged human resource management experience is irrelevant because the career managers at HRC provided warnings, counseling, and remedies regarding MRD issues to other AGR officers regardless of the officer's experience levels on the subject. Third, the Army G-1 erroneously interprets the applicable DOD directive's words "may lead to a retirement" to conditionally apply to his "rare and unique situation," where it should instead be interpreted as having been used in the permissive sense, more in line with the basic nature of the whole DOD directive itself. He also points out that the directive clearly establishes that the Service, not he, should have made the determination before assessing and then retaining him beyond 6 years as to whether he was able to reach AFS retirement. He asks the Board to (1) see that his alleged experience is irrelevant, (2) take the whole paragraph of the directive for what it was intended thus interpreting the word "may" as the Service is responsible for determining his eligibility for a pension, (3) that evidence shows that others in similar situations were systematically treated to questionable remedies bridging them into AFS sanctuary, and (4) respond by providing him equitable treatment in kind by granting his request. a. The opinion incorrectly asserts that he asked the Board to provide a remedy under TERA. He actually asked the Board for a partial regular pension based on his 15 years of AFS, not TERA specifically, thus leaving the choice of remedy to the Agency. He only described his application for TERA in his original letter to show that he had exhausted that potential remedy based on, again, advice and instructions from HRC. Also, requiring him to narrow his request to a potential remedy that is presumed to fail predetermines the outcome of the argument, which is the G-1's first error of logic in the opinion they provided. Their opinion also addresses whether he should have been provided the pension under TERA. The advisory official erroneously presumed the premise out of logical order, specifically that he should not have expected to be able to reach 20 years AFS which would have entitled him a full retirement benefits. b. To resolve this argument, the matter that should first be decided is whether he should have been expected (by the Service) to reach AFS retirement. Second they should determine whether they could have applied TERA in his case. They should not be allowed to dismiss it out of hand because they presumed the antecedent to be false. The point is moot, however, because the main issue is whether he should be afforded equity as compared to other officers who were provided remedies over the years even before TERA was implemented. c. The Army G-1 argues that he should have been self-informed of his inability to reach 20 years AFS retirement before reaching his MRD for maximum service due to his career. The experience they allege he gained, however, was after the Service accessed him into AGR service, and after reaching non-probationary status. Before he was accessed, one can see from his record that he was an aviator, and was not an Adjutant General (AG) officer, and never was at any point in his career. After the Service accepted him for AGR service in 2004, he served as a Brigade S-1, but even as a Brigade S-1, he did not manage senior AGR Officers or learn of MRD issues because of his job. Meanwhile responsible experts at HRC advised him in 2005 to expect to be able to reach AFS retirement before being separated for "MRD" confusing the matter with age-60 "MRD." He argues that he left his civilian career as a pilot and was never warned he would not meet the criteria for a 20-year AFS retirement. Thus, he alleges he lost his civilian career too. In 2006 with new AGR accessions, they were advised they may not attain 20 years AFS and eligibility for retirement. He asserts he suffered an injustice because he was not adequately counselled nor understood the consequences of his decision to remain in an AGR status. d. He received from his career manager information on how AGR officers were bridging into the 18-year AFS statutory sanctuary using policies meant for troop program units (TPU). Based on this sharing of information, he expected to reach AFS retirement. Months after he reached 6 years of AGR service in April 2010, USAR Command G-1 and HRC career managers advised him to wait and when needed, put in a request for extension of his MRD. Still, the responsible experts at HRC made no effort to address the actual issue by asking DOD for clarification or relevant policy, instead relying on their misapplication of the current rules to preferentially extend and retain selected individuals. He proposes that a brief inquiry will probably show that the senior LTCs in question were also AG officers, adding to the irony of the claim that he, and not the Army, should have known better. One of these officers actually wrote it was "hush-hush" belying the fact that the remedy they were given was not an open sanctioned process like the one to which he was subjected. Had it been so, they might not have been retained for the "needs of the Army." e. One should note that the Army G-1's opinion does not deny that he was not provided warnings, advice, and counseling given to others. Those with actual relevant experience at HRC put the policies in place for this exact reason, which is "problems with AGR service beyond maximum service MRD." So, they should not be allowed to have it both ways by claiming after the fact that he, and not those at HRC, should have been held responsible for knowledge of the problem. Also, the multitude of other AGR Soldiers accessed under the new policy was most certainly comprised of many human resource professionals who also should not have been presumed to need counseling on things like MRD - but they still got warnings, counseling, etc. He argues it is irrelevant what experience he may have had. That argument only supports his point that others were treated differently by the responsible experts serving to construct the inequity in his case. f. The Army G-1 advisory official opined that he should not have expected to reach retirement through reversion to warrant officer because reversions are done for the "needs of the Army." He asserts that while keeping experienced pilots is valuable on its face, it is however common knowledge in the Aviation Branch that reversion by senior commissioned officers to warrant officer has primarily been done for the benefit of the officers who do this, not for the Army. For one, it is because all Army aviators start as helicopter pilots. Second, Army fixed-wing pilot positions are in most part filled by warrant officers. Third, senior Aviation commissioned officers get to fly less than warrant officers and as they get near the end of their careers seek to get a fixed-wing transition and a position flying fixed-wing aircraft in order to gain this experience for future civilian employment. This is because desirable employment in the civil sector (airlines, charter, corporate) is widely available for fixed-wing pilots, and not for helicopter pilots. This is why one should see that reversions are most certainly for the needs of the officer, not for the Army. As for reversions being done for the "needs of the Army," it is quite the contrary. If the Reserve unit is to deploy, senior personnel (like former LTCs and COLs who have reverted to warrant officer) will typically have the option to drop retirement papers rather than deploy. Newer aviators, however, are not as likely to have this option. Given this, one can see it is always in the Army's best interests to have new aviators, rather than to have senior officers who have reverted to warrant officer status. Still, had he reverted, he might have been able to continue service as an AGR warrant officer. It is, again, interesting to point out that he had been in contact with senior warrant officer Aviation Branch Managers at USAR Command and HRC who knew his situation well and claimed at the time they had too many candidates to expect that he would be competitively selected. Then, USAR Command G-1 signed the document that retroactively disqualified him in December 2013. g. The Army G-1 advisory official stated that he should not have expected a remedy under TERA because he was not expected to reach 20 AFS. Their conclusion presumes that he was not expected to reach 20 AFS. This is argued out of order. The first point as to whether he was to be expected to reach 20 years and AFS retirement is argued below. Alternatively, if for a moment one presumed the opposite (that he was expected to reach 20 AFS) given their reasoning he would have been eligible for TERA. From his perspective, USAR Command G-1 delayed the board, precisely because she was worried that he might be expected to reach 20 years AFS as argued. This may seem an implausible claim until one considers the consequences of providing him relief while he was still on active duty. First, TERA can be seen as a cost-saving measure to provide a retirement to someone whom the Army "may" otherwise have to retain, but might not need. It makes sense that if one is not eligible for a 20-year retirement, providing one at 15 years is unwarranted. In fact, USAR Command addressed this possibility with their policies, and even once in a specific order in 2008. But he never "elected" to be separated from AGR before reaching AFS retirement as their order describes. He only applied for TERA because he was directed to do so at the end of his service as it was one of two venues offered to address his case at the time. He still however preferred it to an MRD extension because of the uncertainty that he would reach retirement after the extension because of the way he was being mishandled by HRC and USAR Command. He asserts that USAR Command G-1 knew this because when he had been in early discussions in May 2013 with her about the REFRAD Board and possible authorization for TERA, she was surprised to find that he had not made such an "election," had never been warned or counseled, and then expressed to him that she was concerned about his case because (saying) "Almost 25 percent of our AGR force is in this situation with MRD." It occurred to him that had he been given TERA, this might have set precedent for a multitude of AGR Soldiers who since 9/11 had been, or would be, released without a pension under similar questionable circumstances. They clearly had no plan (or funds appropriated) for that. In any case, the delay of 16 days ensured the controversy would not come up before he was separated from active duty, thereby forcing the matter into another venue. h. The G-1 opinion admits that others were provided remedies, but contends that their cases were considered based on "needs of the Army" at the time. They provided no evidence of this however. Also, they cite nowhere in policy, law, or regulation how "needs of the Army" is defined that applies here. They cannot do so because other AGR officers that were provided remedies were not boarded under the same circumstances as was he. From the examples he cited, and other evidence he provided, one can clearly see that career managers at HRC were offering questionable remedies to those like him who had problems bridging into sanctuary because of MRD. In his first letter he presented evidence of two personnel that he knew professionally and believed to be in danger of reaching MRD for maximum service before sanctuary. They were both senior LTCs and both were serving as Inspectors General within the USAR Command Headquarters. In their case deploying units, not HRC or the Secretary of the Army, made the determination as to whom they needed. These two may have even been provided mandatory counseling regarding MRD by a general officer in accordance with USAR Command policy. On the other hand, his brigade commander and commanding general saw his retention, possibly even at his current post, "in the needs of their commands." Their requests however were trumped by HRC and the ASA (M&RA) citing "needs of the Army." The G-1 provides no evidence that the unit's choices in the case of the other officers was made under the same standard under which he was denied. Consider that their deployments might have been filled by other officers who were not in need of sanctuary at the time, which could have been more within the "needs of the Army" given the whole of circumstances. So, the two other officers in his example were by definition preferentially treated to deployment bridging them into 18-year AFS sanctuary because they were not subjected to the same process or standard as he. One, he remembers, was to be deployed beyond MRD for maximum service until she could reach a promotion board, thereby gaining two more years before MRD as a COL, and was eventually to reach sanctuary because of it. So, their remedies therefore cannot be considered equitable, even if at the time considered by someone to be meeting the "needs of the service." The remedies did, however, serve to provide them a path to AFS retirement. Still, if their cases had been subjected to the same scrutiny and conditions as his, they might not have been retained. The sum point of his dichotomy is that the "needs of the Army" is not a credible standard for comparison over time because there is and can be no consistent, common definition. i. The G-1 addresses in their seventh paragraph what he considers to be the heart of the matter. Their opinion contends that even though he was retained beyond the 6-year milestone requiring management as a career AGR Soldier into military retirement, he should not have expected to reach AFS retirement because the word "may" meant that he "might not" because of MRD. This erroneously misapplies the statements of the DOD directive they quote however. They also fail to quote it in whole or verbatim, possibly lending to their narrow and erroneous interpretation. Department of Defense Directive (DODD) 1205.18, May 25, 2000, paragraph 4.7 states: …that AGR programs in each Military Service shall be administered as career programs that may lead to military retirement after attaining the required years of active Federal service. Personnel may be placed in AGR status for occasional, one-time tours, or for a probationary period established by the Secretary concerned. A probationary period shall not exceed 6 years. Continuation beyond the initial probationary period or service in AGR status for more than 6 years constitutes retention and shall require subsequent management under a career program. The probationary period shall commence not earlier than March 24, 1997. In considering this, he argues one should know the policies that establish the Service are not written to tell what cannot be done, but what can or should be done. Specifically, the G-1 opinion misses the point of the whole paragraph, which is to prescribe to the Services categories of AGR service for which Congress has funded, the third of which being AGR Soldiers chosen to be kept beyond 6 years. It goes on to stipulate that these candidates "shall" be deemed by the Service first to be able to reach AFS retirement. In other words the Services are allowed to keep an AGR Soldier beyond 6 years given that they (the Soldier) "may" reach AFS retirement in the permissive sense. The directive places the requirement to make this determination on the Services, not the Soldier - hence the nature of the directive is not to address Soldier pay, benefits, or retirement per se. In doing so, it protects Soldiers from abuse by the Services by using the word "may" in the permissive sense, not the conditional sense as their opinion would have it. "May" does not mean "might" in the conditional sense because it is not speaking to the variable eligibility of the Soldier. j. If DOD had meant to allow for this, they would have added a fourth category to include "those who serve beyond 6 years without the possibility of reaching AFS retirement." But, for argument's sake, if one presumes "may" was used in the conditional sense, there is also a more plausible interpretation that supports his case, which would be that "may" holds out for the more common possibility any Soldier might not reach AFS retirement because of untimely death, medical disqualification, or separation for misconduct - not for unique situations. Given that, he submits that any unbiased reader will find this to apply, rather than finding that one could be on AGR service for over 6 years as a "career" Soldier under the directive fully expecting to be separated later after 28 or 30 years of service without an AFS pension. Any reasonable reader would believe that Soldiers should not be expected to sign up for AGR service with this absurdly complex interpretation given common understanding of the words "career," "may," and the context of the whole directive. k. He suggests regulations establishing AGR service are not written to tell Soldiers what to expect, but to tell the Service what the Service may and should do when accessing and retaining AGR Soldiers - which leads one to consider the specific nature of the directive itself. So, the central and primary error he contends that the G-1 advisory official makes here is that they fail to attribute the word "shall" to the Service, (the Army); rather than attributing questionable intent to the word "may." To explain, first, a casual reader will easily see that the directive for one dictates how the Services will establish the program, not how the individuals will do so. Second, if readers step back from this paragraph, and take it in as a whole, they can see that its ultimate purpose is to differentiate AGR service between "career" AGR Soldiers and all others. It also uses the common word "career" which he submits that any reasonable person will interpret when applied to government service to mean "retirement eligible." l. In his opinion if an AGR Soldier reaches "career" status, they are then considered AFS retirement eligible under the directive. Finally, the directive clearly says "shall" in three places, serving to narrow the options the Services could provide so that they can determine how to fund their AGR Soldiers. From this prospective AGR Soldiers should also learn when to expect a chance at AFS retirement. It clearly identifies this "retirement eligible" category as other than "probationary" or one of "occasional onetime tours" status. So, from the perspective of the Soldier, if you are "probationary," or if you are on an "occasional one-time tour," you as an AGR Soldier cannot expect to be managed to AFS retirement. But if you are on AGR status more than 6 years, you are by definition not "probationary" or on "occasional one-time tours," and are therefore in a "career" status. There is no fourth category allowing for those who "...serve past 6 years of AGR service without the possibility of reaching AFS retirement" because it is not supposed to happen. It is that simple: The Service should first make sure it is possible for you to reach AFS retirement before accessing and retaining you for more than 6 years of AGR service, and after that 6 years the Service should make sure it is at least possible for you to reach AFS retirement (barring untimely death, etc.) through management as directed by DOD. The directive does not leave it to the Soldier to make this determination, or to find an alternative to reach AFS retirement sometime late in their AGR career. However this is essentially what G-1's position claims, specifically that he should have known he would not reach AFS retirement before accepting AGR service, and that he should have as an individual Soldier managed himself knowing the word "may" meant "might not." Their position is clearly in direct opposition to the DOD directive because the Service should have determined that it was never going to be possible for him to reach AFS retirement, and as a result they should not have kept him past 6 years of continuous AGR service. m. To summarize what actually happened, in 2007 he was no longer in probationary status and was placed into "Indefinite" status by a written order published by HRC. He then reached 6 years of continuous AGR service in 2010. Before this point, the Service could have placed him on his first tour telling him in advance that it would never go beyond 6 years, or once they realized in 2006 they could have followed the DOD directive by making his first non-probationary reassignment that October in 2006 "temporary," or by counseling him that if he did go beyond 6 years of AGR service he might not reach 20 years AFS retirement. They instead failed to do so in violation of DOD directive, then provided these exact warnings to others, and then managed others with MRD issues to 18-year sanctuary without doing so in his case. n. When he was accessed in 2004 there was a war on and because of it the Army Reserve needed field grade officers to serve in an AGR status. He left a 10-year career as an airline pilot to meet the needs of the Service and served with distinction for the next 10 years. Evidence shows that as early as 2006 administrators knew of AGR Soldier's problems with their MRDs, and in 2007 and 2011 they were bridging those with MRD issues into 18-year AFS sanctuary. The Service, however, never made overt policy changes to address the known issue. Meanwhile they mismanaged him by failing to provide a path to AFS retirement, and also mismanaged the program by preferentially providing remedies to others (MRD extensions, deployments into 18-year AFS sanctuary, etc.) using processes not ever intended to address this specific issue. While doing this they were not solely and directly serving the "needs of the Army" but were instead providing a needed path to sanctuary and AFS retirement for those whom management preferred. When his time came for favorable consideration of 20 years AFS, the war was drawing to an end and the Service claimed they needed fewer senior officers because of it, so they denied him an MRD extension due to "needs of the Army" even while his commanding general asked for his retention. The Army should not be allowed to claim "needs of the Army" when others were provided questionable remedies under different circumstances. The Army should not be allowed to claim this again, knowing this full set of circumstances, to justify separating him after his 10 years of continuous AGR service without a pension. The Army should instead be required to have managed its AGR force in accordance to the DOD directive and be held responsible knowing the eligibility of their AGR Soldiers to reach AFS retirement and for treating its Soldiers with fairness, equity, and justice when applying remedies to errors made by the Service. The Board should find that he was or should have been expected to be able to attain an AFS pension because of the actions and inactions of the Service; that as a result of their actions and inactions he was treated with gross inequity and respond by providing him due justice in granting his request. 18. Title 10, U.S. Code, section 14507 (Removal from the reserve active-status list for years of service: reserve lieutenant colonels and colonels of the Army, Air Force, and Marine Corps and reserve commanders and captains of the Navy) states in sub-section (a) unless continued on the reserve active-status list under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of lieutenant colonel or commander and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the reserve active-status list) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of commissioned service. 19. Army Regulation 140-30 (Active Duty in Support of the USAR and AGR Management) prescribes policy and procedures for selecting, assigning, attaching, using, managing, and administering USAR Soldiers on active duty in the AGR program. It establishes a personnel management system managing AGR Soldiers through selection for accession and continuation in the AGR program, promotion, and selection for schooling and training. Paragraph 6-1 states the objective of AGR Soldiers professional development is to improve and maintain the skills and qualifications that are required for both pre- and post-mobilization. AGR officers should be aware that they are not guaranteed either 20 years AFS or active duty until reaching their MRD. 20. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty (AD) to the Reserve component (RC) and discharge functions for all officers on AD for 30 days or more. Paragraph 2-23 (rules for processing involuntary release from active duty due to maximum service) states an RC officer, to include warrant officers, will be REFRAD when they complete 20 years of active service. Commissioned officers, other than warrant officers, may request voluntary retirement under Title 10, U. S. Code, section 3911, provided that they have 10 years of active service as a commissioned officer. Sub-paragraph (d) states an RC LTC not recommended for promotion to colonel will be separated not later than the last day of the month in which he or she completes 28 years of commissioned officer service (Title 10, U. S. Code, section 14507(a)). 21. MILPER Message 13-231 (TERA), dated 22 August 2013, states the purpose of this Message is to provide guidance in support of TERA. TERA offers voluntary early retirement at a reduced monthly retirement pay, to eligible members prior to completing 20 years of active service. a. Paragraph 4 (Applicability) states Soldiers denied continued service with an established involuntary separation date of 30 September 2018 or earlier as a result of the Department of the Army centralized selection board process including the Director, National Guard Bureau's force shaping centralized separation boards for Title 10 officers, who meet all eligibility criteria may request TERA in lieu of involuntary separation. Since TERA is not an entitlement, eligible members who desire early retirement, must apply for consideration. Approval is not assured. b. Paragraph 4(c) states all Soldiers must meet all eligibility requirements for retirement for length of service for a 20-year retirement, except as provided for in this message. Exceptions to other eligibility requirements will not be considered. In all cases, early retirement will not occur prior to attainment of 15 years of active service on the established separation date. c. Paragraph 4(b) states TERA applies to officers or warrant officers who have twice failed selection for promotion to the next grade, including those who have been selected to but not yet accepted selective continuation, and those officers selected for separation from service by a centralized force shaping selection board process, who are on active duty and have 15 but less than 20 years of active service as of the established involuntary separation date. 22. MILPER Message 13-115, dated 1 May 2013, Subject: Fiscal Year 2013 (FY13) AGR REFRAD Board as a Force Alignment Tool, provided the procedural guidance for the FY13 AGR REFRAD Board which convened on 15 July 2013. All AGR LTC and COL officers to include those who were mobilized under Title 10, and who met the criteria would be considered by the Board. LTCs with an MRD date within 12 months of the Board's convening date or who had an approved retirement as of 8 July 2013 (Retirement date must be effective 1 July 2014) would not be considered. 23. Army Directive 2013-25 (TERA) signed by the Secretary of the Army on 10 June 2013 authorized early retirement to Soldiers denied continued service with an established involuntary separation date as a result of a Department of the Army centralized selection board process. Soldiers must meet the criteria and basic eligibility requirements may not be waived. Officers at risk for losing continued service by virtue of non-selection for advancement by a promotion selection board or separation by a force shaping centralized selection process who are serving on active duty and have completed 15 but less than 20 years of active service as of the established involuntary separation date are considered eligible for TERA. 24. DODD 1205.18 (Full-Time Support (FTS) to the RC) establishes uniform policies, assigns responsibilities, and establishes procedures for managing the FTS program in the RC. DOD policy is that the RC maintain a cadre of FTS personnel who are primarily responsible for assisting in the organization, administration, recruitment, instruction, training, maintenance, and supply support to the RC. When authorized, RC FTS may complement their primary responsibility outlined above by providing support to active duty members of the Military Services, members of foreign military forces, DOD contractor personnel, and DOD civilian employees. The mix of FTS personnel, which consists of active duty personnel, AGR personnel, military technicians (MTs) (dual status), non-dual status technicians (NDSTs); and other federal civilian employees, is determined by the Secretary concerned to optimize consistency and stability for each RC to achieve its assigned missions. a. Paragraph 3(a), (AGR Management), AGR personnel will be assigned duties as described in sections 101(d)(6), 10211, and 12310 of Reference (d) and section 328 of Reference (f). b. Paragraph 3(b), AGR programs in each Military Service will be administered as career programs that may lead to a military retirement after attaining the required years of AFS. (1) Personnel may be placed in AGR status for occasional, one-time tours, or for a probationary period established by the Secretary concerned. (2) A probationary period will not exceed 6 years. Continuation beyond the initial probationary period, or service in AGR status for more than 6 years, constitutes retention and will require subsequent management under a career program. c. Paragraph 3(c), AGR personnel will be counted against authorized Selected Reserve end strength as authorized by the Congress each year for their respective RC;, against the authorized end strengths for RC members on active duty or full-time National Guard duty in support of the RC; and/or against congressional authorizations for the grades of E-8, E-9, O-4, O-5, and O-6 in accordance with sections 12011 and 12012 of Reference (d). 25. Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former RC Soldiers. Retired pay is defined as pay granted Soldiers and former Reserve Component Soldiers under Title 10, USC, section 1331 (now chapter 1223), after completion of 20 or more years of qualifying service and upon attaining age 60. It also states an individual does not need to have a military status at the time of application for retired pay to be eligible for retired pay, but must have: (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) at the time the applicant was discharged, served the last 8 years of his or her qualifying service as a RC Soldier (reduced to 6 years in 2002 and to 0 years in 2005). 26. Army Regulation 570-4 (Manpower Management) implements DODD 1100.4 (Guidance for Manpower Programs). The ASA MR&A is responsible for and has approval authority for all manpower policies in the Army. To carry out this responsibility, the ASA M&RA will provide guidance and direction concerning manpower management to all Army activities to include but not limited to manpower plans, policies and procedures and establishment and approval of civilian and military manpower controls and allocations within resource levels. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that he should be entitled to a 15-year AFS retirement with Tricare benefits. He argues that in contrast to other career Soldiers, he was: * not warned or counseled as other AGR Soldiers had been about the possibility that he would reach his MRD before a 20 year AFS pension * retroactively excluded from continued service as a warrant officer * excluded from a board that would have qualified him for a partial retirement under TERA by 16 days * denied an extension of his MRD by the ASA (M&RA) * separated without a regular pension after having been retained in career AGR status beyond the 6-year milestone requiring management into pension eligibility in accordance with DOD instructions and Army regulation 2. There is no effective relief that this Board can provide the applicant because the applicant does not qualify for an active duty retirement under any statute, regulation, or plan because he has either not completed the required active years of federal service or does not meet the criteria for other early retirement plans. 3. In order to qualify for an active duty retirement, he must have completed at least 20 years of AFS. In order to qualify for an early active duty retirement, he must meet the required years of active service as well as meet other requirements for TERA. His service records show the only retirement plan he is eligible for is non-regular retired pay at age 60. By law, RC members are required to complete 20 years of qualifying service to be eligible for non-regular retired pay at age 60. Because the applicant has completed 20 or more qualifying years of service toward non-regular retirement, he was issued a 20-year letter and will be eligible for retired pay at age 60. 4. With respect to TERA: a. TERA does not apply in the applicant's case. His removal from an active status was not a result of non-selection by a promotion selection board or by a force shaping centralized selection board. His non-selection for promotion to colonel did not require involuntary separation/retirement and he would not qualify for a 20-year AFS retirement before reaching his MRD based on years of commissioned service. His removal was an instrument of the law, based on reaching maximum time in service based on his grade. b. The applicant is inaccurate when he contends he was personally excluded from an AGR REFRAD board that would have qualified him for partial retirement under TERA by 16 days. The determination of the zone of consideration for any centralized selection board is made based upon the needs of the service and is not set in order to include or exclude any one individual. c. TERA is used to retire members who are excess to the Service’s short term and long term needs and who, absent the availability of TERA, would have been expected to qualify for a 20-year AFS retirement. All Soldiers must meet all eligibility requirements for retirement for length of service for a 20-year retirement. Exceptions to other eligibility requirements are not considered. Since he reached his MRD before he would have qualified for a 20-year AFS retirement, he was disqualified for retirement under TERA, even if he had been selected by an AGR REFRAD board or was non-selected for promotion to colonel. 5. With respect to the MRD: a. The date of appointment as a commissioned officer is the start point for computing an officer's years of commissioned service in order to establish his MRD. Grades are used to apply the basic rules for MRD calculations based on years of service. The applicant was appointed in the ARNG on 14 June 1986. He was promoted to the grade of LTC. Title 10, U.S. Code, section 14507 requires the removal of an officer from the reserve active-status list upon reaching the MRD. b. A LTC who is not on a list of officers recommended for promotion to the next higher grade shall be removed from that list on the first day of the month after the month in which the officer completes 28 years of commissioned service. The applicant held the rank of LTC and he was not on a promotion list. His removal from the reserve active status list at 28 years of commissioned service was required by law. c. His argument regarding not being counseled or notified upon entry into the AGR program or upon completion of the probationary period that he would be removed from active status prior to completing 20 years AFS, does not change the fact that by law, he was required to be removed on 30 June 2014. A review of the evidence shows no error in his MRD calculation. The evidence shows by law he was appropriately removed from both the AGR and the Reserve active status list. 6. With respect to his extension: a. AGR Soldiers will be ordered to active duty for 3 years. A Soldier will be stabilized during the initial period of duty in the AGR Program, except for the needs of the USAR (for RC Soldiers). Subsequent periods of duty for AGR officers will be for an indefinite period. However, unless an AGR officer is approved for retention, he or she will be released from AD when they have attained 20 years of active service. b. No Service personnel are promised or guaranteed 20 years AFS. AGR officer management is structured and managed within the statutory framework of Reserve officer career management laws and is implemented in applicable Army regulations. c. MRD extensions are based upon the needs of the service, the match of an officer's qualifications to the requirement, the willingness of the officer to perform the required mission or service, and in some cases, the timing of the requirement with regard to the officer's career. Each application for an MRD extension is reviewed and a determination is made based on multiple factors to include the needs of the Army. The applicant erroneously tried through multiple arguments to show he was not fairly and equitably treated when his MRD extension was denied. The complete facts and circumstances of the other officers whose MRD extension requests were approved are speculative at best by the applicant. This Board is not an investigative board. While the applicant disagrees with the ASA M&RA decision, all personnel serve based on the needs of the Army as determined by Congressional manning mandates. 7. With respect to being retroactively excluded from continued service as a warrant officer by six months due to the Army Reserve G-1's policy directive, dated 21 December 2012: a. The G-1 policy directive focused on fulfilling the needs of the Army Reserve warrant officer program and was not to be used as an avenue solely for commissioned officers to continue serving in another capacity when faced with impending transfer or discharge due to their MRD. b. In any case, continued warrant officer service would have required an appointment as a warrant officer. Appointments of commissioned officers and warrant officers are delegated by the President to the Secretary of Defense. Such action is not within the purview of this Board. 8. The applicant has not shown an error or an injustice nor were the arguments he presented valid when all statutory and regulatory guidance is taken into consideration. He served faithfully for many years as an enlisted Soldier as well as a commissioned officer. He attained the required years of service for a non-regular retirement. He did not attain the required years of service for an AFS retirement. There is no provision in law or rule in the regulation that authorizes him an active duty reduced or 15-year retirement. As he is not authorized AFS retirement, he is not entitled to associated benefits such as "permanent" Tricare. 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) AR20150005798 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005798 21 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1