IN THE CASE OF: BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150015910 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150015910 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150015910 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 removal of his name from the Calendar Year 2014 (CY14) Maryland Army National Guard (MDARNG) Active Service Management Board (ASMB) decision removing him from the MDARNG Title 32 Active Guard/Reserve (AGR) program. In effect, he requests reinstatement into the MDARNG, or reinstatement into a position under Title 32, or Title 10, United States Code (USC) (AGR). He also requests a personal appearance before the Board. 2. The applicant states, in effect: a. Major General LLS, The Adjutant General (TAG), MDARNG, personally selected him to participate in a Title 10 One-Time Occasional Tour (OTOT) for 36-months. On 24 September 2014, the MDARNG ASMB selected him as the least qualified applicant, and he was scheduled for elimination from the Title 32 AGR program. He believes he should have been placed elsewhere in the Title 32 AGR program, or moved to a Title 10 position at the National Guard Bureau (NGB) so that he would have been removed from the hostile work environment he experienced in the MDARNG. [OTOT is a program that permits a Title 32 ARNG officer to be accessed into the Title 10 AGR program on a one-time basis. The program's intent is to provide a vehicle by which the NGB/TAGs can bring Soldiers into an AGR tour, for a period of not more than 3 years, to perform a specific project or duty.] b. Regulations indicate the ASMB process should not be driven by promotions, voucher misuse, and erroneous hiring practices. Documents and personnel actions show he was removed from the Title 32 AGR program because he had volunteered for OTOT before the ASMB convened in September 2014. He asserts the ASMB was not made sufficiently aware of his OTOT status, and the MDARNG chain of command (who later were also members of the ASMB) were not aware of updated OTOT rules, issued in 2013, with respect to release from active duty (REFRAD). Among those in the MDARNG chain of command, the applicant names the MDARNG Chief of Staff (COS), Colonel (COL) ARF; his AGR manager, Lieutenant Colonel (LTC) DER; and the MDARNG Human Resources Officer, COL SMC. c. He was subject to the OTOT (Title 10/Title 32 Command Swap), and never received a key developmental position for the move to the OTOT; he was not promoted nor was he given reciprocal treatment during the Title 10/Title 32 swap. This contradicts the guidance published by NGB. LTC BSB, for whom he swapped AGR positions, received a battalion command, and he was promoted to LTC; by contrast, the applicant states, he was selected for elimination, and his OTOT tour was reduced by a year, changing it from 36 months to 24 months. The applicant was notified of his selection for promotion to LTC in July 2015, and this selection was evidence of his potential for future service, as well as proof that he had more potential than the other officers considered by the ASMB. The ASMB, however, acted without knowing of his promotion [as it occurred after the board convened]. d. The wrong format was used in the notification memorandum for the ASMB; it contained incorrect dates, and did not reference his OTOT. On 25 November 2014, he received a phone call from COL ARF, notifying him of the ASMB results. During this conversation, COL ARF indicated, "now we can promote Captain HJ," who was someone they wanted to promote to major (MAJ). COL ARF told him he should be happy that he was helping her [by virtue of his elimination]. He believes it was wrong to use the ASMB to promote junior officers. e. He was subject to pre-selection [apparently referring to the ASMB results] based on his area of concentration (Aviation); and for being a part of two inspector general (IG) complaints (one against the AGR manager, LTC DER, during the ASMB process, and the other against his former commander while deployed in Kosovo). The commander was eventually removed, based on these investigations. He offered key witness testimony for both IG investigations; he believes he suffered retaliation because of his testimony. He indicates the retaliation came in the form of being removed from any combat aviation brigade (CAB) officer management plans. This all happened before the ASMB convened, and the senior CAB leadership knew that there were plans for his elimination. The MDARNG was, and continues to be, understrength in both the AGR Aviation Branch MAJs and traditional Aviation MAJs, due to retirements and other factors. f. It is well known within the MDARNG that COL ARF has a relationship with LTC DER, and that this relationship is based on the fact that LTC DER served as COL ARF's executive officer (XO) while COL ARF was a battalion commander. Additionally, there is a documented history of eliminating Aviation officers by the ASMB (COL DC and LTC C), and the former COS, COL SMC (who was the COS before COL ARF) made public statements disparaging MDARNG Aviation personnel. The applicant states he had to take action on both IG investigations while COL SMC removed him from his position as an XO for a recruiting battalion. He maintains this is evidence of being pre-selected for elimination, and shows the extent of reprisal against him for being a "whistleblower." g. His official military personnel file (OMPF) shows he met or exceeded all educational requirements for promotion and retention, in that he successfully completed Intermediate Level Education – the Advanced Operations Course [a course that prepares maneuver, fires, and effects, and force sustainment career field officers to serve on battle staffs of operation headquarters]. His officer evaluation reports (OER) for positions held outside the MDARNG are good. h. While other parties before the ASMB may have had constructive credit, he actually deployed three times: Operations Enduring Freedom (OEF) and Iraqi Freedom (OIF); and as a member of KFOR (Kosovo Force) [the Kosovo Force is a North Atlantic Treaty Organization-led international peacekeeping force, responsible for establishing a secure environment in Kosovo]. Plus, the current MDARNG TAG personally selected him for the OTOT program. The applicant states his erroneous selection for elimination by the ASMB was caused by lack of command oversight and administrative supervision on the part of the AGR manager, the HRO, and the COS. He further asserts unconventional and poor hiring practices of senior officers into AGR positions led to the erroneous decision to hold an ASMB for MAJs, and volunteering for a Title 10 OTOT removed him from the MDARNG Title 32 AGR program prior to the ASMB, therefore he should not have gone before the ASMB. 3. The applicant provides: * memorandum, dated 2 December 2014, subject: Non-retention for Continued Service on the Officer AGR REFRAD/ASMB * memorandum, dated 24 July 2015, subject: Notification of DA Mandatory Selection Board Promotion Status * email, dated 5 December 2014 * memorandum, dated 18 June 2015, subject: Non-retention for Continued Service * DA Form 67-10-2 (Field Grade Plate (O4 - O5; CW3 - CW5 (Chief Warrant Officer three through five)) OER for the rating period 21 January 2014 through 20 January 2015 * Orders Number 71-24, dated 12 March 2014 * memorandum, dated 27 May 2015, subject: Request for Extension of Title 10/Title 32 Command Tour * 12 pages of positions within the applicant's MDARNG unit * DA Form 67-9 (OER) for the rating period 1 April 2013 through 20 January 2014 * memorandum, dated 5 November 2014, subject: Verification of Security Clearance CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service in the MDARNG, he was appointed as a commissioned officer in the MDARNG and executed his oath of office on 9 March 2000. * he has continuously served in an active status from 9 March 2000 to present, both in an AGR status and while in support of OEF, OIF, and KFOR, under Title 10 * initially entered commissioned service as an Armor officer; effective 24 April 2003, was assigned to perform aviation duties * deployed to Afghanistan from 6 October 2006 to 10 October 2007; to Kuwait/Iraq from 2 December 2010 to 19 October 2011; and to Kosovo from 15 April 2013 to 22 January 2014 * promoted to MAJ effective 19 August 2009 (date of Federal recognition) * as of 4 April 2014, he had 23 years of total service in the ARNG 2. Memorandum, dated 15 January 2013, issued by the NGB, subject: ARNG Officer AGR REFRAD Board and ASMB Guidance for Calendar Year (CY) 2013-2015 (ARNG-HRH Policy Memorandum Number 13-002), prescribed policies and procedures for States to conduct Officer ASMBs for those officers with 18 years or more of active service who will fall within specified zones of consideration. Paragraph 8l states, Title 32 AGR officers serving OTOT as Title 10 AGR officers will not be considered by the Title 10 AGR REFRAD board. They will instead be considered by the ASMBs in their respective States. Should they be selected for release, they will be REFRAD not less than 9 months, but not more than 12 months from notification, or upon completion of OTOT, whichever is later. 3. NGB Staff Summary Sheet, dated 18 February 2014, proposed releasing then MAJ BSB back to the MDARNG for a 2-year battalion command. In order to effect this release, the MDARNG recommended the applicant (a Title 32 AGR officer) be temporarily assessed into the Title 10 AGR program (under the OTOT program) while MAJ BSB was in command. If approved, MAJ BSB would assume battalion command effective 1 March 2014, and the applicant would be assessed into the OTOT by late Spring. 4. Orders Number 71-24, dated 12 March 2014, issued by the NGB, ordered the applicant to active duty in an AGR status with duty at the NGB for a term of 3 years, [while serving in an OTOT status, from 1 April 2014 through 31 March 2017]. 5. Memorandum, dated 13 June 2014, issued by the MDARNG, subject: CY14 Officer AGR REFRAD/ASMB, addressed to the applicant, notified him he was within the zone of consideration for the State's ASMB. The notification further stated the ASMB would be conducted on 24 September 2014; personal appearance was not authorized. He was advised of the documents the board would examine, and was advised to review those documents prior to the date the board would convene. The documents identified included: Officer Record Brief (ORB) (certified), Personnel Qualification Record, OMPF, and any written communications from the applicant. [The applicant's OMPF does not indicate whether he communicated with the ASMB before it convened]. 6. Memorandum, dated 24 July 2015, issued by the MDARNG, subject: Notification of DA Mandatory Selection Board Promotion Status, informed the applicant he was selected for promotion to LTC by the Fiscal Year (FY) DA Reserve Component (RC) Army Promotion List Promotion Selection Board. 7. Memorandum, dated 2 December 2014, issued by the MDARNG, subject: Non-retention for Continued Service on the Officer AGR REFRAD/ASMB, advised the applicant that the MDARNG's ASMB selected him for release from the AGR program. His options were to return to traditional drilling status, apply for retirement, transfer to the U.S. Army Reserve, or apply for active duty under the Officer/Warrant Officer Call to Active Duty Program, as administered by the U.S. Army Human Resources Command 8. Memorandum, dated 27 May 2015, from the MDARNG and addressed to the NGB, subject: Request for Extension for Title 10/Title 32 Command Tour, requested the NGB's approval of an extension of the Title 10/Title 32 swap involving LTC BSB and the applicant. The basis was that LTC BSB was a critical member of the MDARNG's command leadership, and the applicant was providing excellent staff work, and contributing to the NGB team. In an email, dated 29 May 2005, the NGB COS indicated the request would not be supported for two reason: * the NGB COS wanted to "stick to the intent of the program," which was for a 2-year swap * the NGB had already loaned LTC BSB for an officer that was one grade lower [the applicant was still a MAJ at the time], and the NGB COS wanted to "return the balance" 9. Orders Number NG-5307-00003, dated 3 November 2015, issued by the NGB, ordered the applicant to active duty for operational support - Reserve Component (ADOS-RC) from 1 April 2016 to 30 September 2016 for duty at the NGB. 10. Orders Number 091-068, dated 31 March 2016, issued by MDARNG, reflected the applicant was transferred from a Title 10 Officer ARNG Staff Element [NGB] to a position in the MDARNG effective 1 April 2016. This transfer was done at the applicant's request. 11. Orders Number 105-145, dated 14 April 2016, issued by the MDARNG, promoted the applicant to LTC effective 1 April 2016, and with a date of rank of 9 July 2015. 12. Orders Number NG-6274-00056, dated 30 September 2016, issued by the NGB, ordered the applicant to active duty for ADOS-RC, during the period 1 October 2016 to 30 September 2017, and with duty at the NGB. He is currently serving on active duty in accordance with this order. 13. In an email, dated 16 March 2017, an official from the MDARNG stated that at the conclusion of his OTOT, the applicant was brought back into the MDARNG as an AGR for one day (31 March 2016). This was done so he could be released from the MDARNG program (he was not issued a DD Form 214). The applicant then transferred to another MDARNG unit, effective 1 April 2016, and began service on an active duty ADOS-RC tour, covering the period 1 April to 30 September 2016. This ADOS tour was renewed for another year, and he is currently serving in the ADOS-RC status. 14. The applicant's OMPF does not show any documents indicating he filed a complaint under the provisions of Title 10, USC, section 1034 [the Military Whistleblower Protection Act (MWPA)]. 15. On 26 August 2016, an official with the MDARNG provided input for the NGB's advisory opinion. The official essentially stated: a. A review of the CY14 ASMB revealed it was properly conducted. TAG Maryland approved the CY ASMB selection objective to non-retain one O4 MAJ as part of his force management program. The board results were reviewed by NGB, and was determined to be in accordance with the appropriate instructions from NGB. TAG then approved the board results and the applicant was subsequently notified of his non-retention. Lastly, the composition of the board was in-line with the demographic categories of those members whose board files were reviewed. b. The applicant wrongly contends that he should not have been considered by the MD ASMB and that his OTOT was shortened due to the actions of the ASMB. As background to these issues, the official offers: MD and NGB agreed to a 2-year AGR officer exchange. The NGB would send one of their Title 10 officers to MD in a Title 32 OTOT status in order to command a battalion, and MD would send one of its Title 32 officers to the NGB, in a Title 10 OTOT status, to serve as a staff officer. The exchange began in March 2014, and ended in March 2016. c. ARNG Policy Memorandum Number 13-002 states that Title 32 AGR officers serving OTOT tours as Title 10 AGR officers will not be considered by the Title 10 AGR REFRAD board, but will, instead, be considered by their respective State ASMB. Thus, it was appropriate for the applicant to appear before the MDARNG's CY14 ASMB. Further, the policy states, if such officers are non-retained by their respective State's ASMB, they will be released between 9 to 12 months after notification of board results, or upon completion of the OTOT orders, whichever is later. The applicant was notified of the board results in December 2014, but was not released from active duty until March 2016 when his OTOT orders ended, which was the later of the two dates. The applicant's initial OTOT order was cut for 3 years, but was subsequently amended to just 2 years by the NGB, in accordance with the officer exchange agreement. The OTOT order amendment had nothing to do with the ASMB results, and everything to do with the exchange agreement. d. In May 2015, the MDARNG COS did submit a request to the NGB for a 1-year extension to the officer exchange, but this request was not actioned. As noted above, the applicant's 3-year OTOT order was amended. 16. On 2 September 2016, an official from the NGB prepared an advisory opinion. a. Summary. The applicant believes he was unjustly selected for elimination by the CY14 AGR REFRAD/ASMB while serving in a Title 10 OTOT, and requests placement back into the AGR Title 32 program at the conclusion of his OTOT, or alternatively, place in a Title 10 AGR position at the NGB. The official recommends disapproval of the applicant's request. b. Discussion. (1) On 18 February 2014, the MDARNG and the NGB agreed to a 2-year AGR officer exchange. As reflected in an NGB Staff Summary Sheet, the MDARNG requested an exchange of the applicant (Title 32 AGR officer) to be temporarily assessed into the Title 10 AGR program under OTOT from 1 March 2014 to 1 March 2016. (2) ARNG Policy Memorandum Number 13-002, paragraph 8l, states, "Title 32 AGR officers, serving OTOT as Title 10 AGR officers, will not be considered by the Title 10 AGR REFRAD board. They will be considered by their respective State ASMB, if they fall into the zone of consideration for the board." (3) On 13 June 2014, in a memorandum, the MDARNG notified the applicant he fell within the zone of consideration (18 years of active service as of 24 September 2014). (4) ARNG Policy Memorandum Number 13-002 further states, "Should the Officers be selected for release, they will be REFRAD in accordance with the notification period established at paragraph 15 below, or upon completion of the OTOT, whichever is later." (5) The attached response from the MDARNG explains, The OTOT order amendment had nothing to do with the ASMB results and everything to do with the exchange agreement. In May 2015, the MDARNG COS did submit a request to NGB for a 1-year extension to the officer exchange, but this request was not actioned. The applicant’s 3-year OTOT order was subsequently amended by NGB to change the end date from March 2017 to March 2016, keeping in line with the exchange agreement. (6) The results of the MDARNG AGR ASMB for CY14 were reviewed by the NGB and found to have been conducted in accordance with the memorandum of instruction. (7) The ASMB considered the applicant and he was released in accordance with Army regulation and policy. As such, the NGB recommends disapproval of the applicant's request. (8) The advisory opinion was coordinated with the Full-Time ARNG Duty Branch, and the MDARNG concurs with the recommendation. 17. The Case Management Division, Army Review Boards Agency, provided the applicant of both advisories for review and comment. He did not submit a response. REFERENCES: 1. Memorandum, dated 12 December 2013, issued by the NGB, subject: Title 10 ARNG AGR Life Cycle Management Strategy and Plan (ARNG-HRH Policy Memorandum #13-041), prescribed management policies for the Title 10 ARNG AGR program. It included policies regarding OTOT, and stated this program could be used for Title 10/Title 32 exchange or professional development tours. 2. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record, including independent evidence he provided, is sufficient to render a fair and equitable decision at this time. 2. The applicant requests, in effect, removal of his name from the CY14 MDARNG ASMB decision requiring his removal from the MDARNG Title 32 AGR program. Additionally, based on this action, he requests placement in either a Title 32 or Title 10 AGR position. 3. The evidence of record indicates the ASMB was properly convened and the applicant met the ASMB criteria, in that he was a Title 32 AGR officer with 18 years or more of active service and otherwise fell within the specified zone of consideration. a. He alleges the ASMB was not aware he was serving on an OTOT, but his ASMB notification memorandum advised him to ensure his OMPF was current and told him he could submit a written communication to the ASMB to ensure all of his concerns were appropriately addressed. He presents no evidence he submitted any such documents to the ASMB. b. He appears to allege his OTOT status was part of the reason he was removed from the MDARNG Title 32 AGR program, and that being in the OTOT program should have exempted him from the ASMB. However, he provides no evidence to support what impact being on OTOT had in the ASMB's decision, and, although he was in an OTOT status at the time of his consideration by the ASMB, he was nonetheless eligible. The NGB's guidance clearly states Title 32 AGR officers serving OTOT as Title 10 AGR officers were to be considered by the ASMBs of their respective States when they met the eligibility criteria. c. He essentially contends he experienced retaliation after providing evidence in two IG investigations that later resulted in the removal of a commander. He suggests he was a "whistleblower," and that this was the basis for being selected by the ASMB. He does not submit any evidence, however, that he filed a whistleblower complaint under the MWPA, or notified an IG that he had been subjected to retribution. As to whether his participation in two IG investigations contributed to his selection, the ASMB's proceedings are confidential, and, as such, the specific reasons for the board's recommendations are not known. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015910 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015910 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2