IN THE CASE OF: BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20160011816 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: 1 November 2016 DOCKET NUMBER: AR20160011816 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: 1 November 2016 DOCKET NUMBER: AR20160011816 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: * relief from the Arkansas Army National Guard (ARARNG) Title 32 Active Guard/Reserve (AGR) Active Service Management Board (ASMB) * transfer to a Title 10 AGR status * consideration for promotion to colonel (COL) under the criteria of the 2015 and 2016 Promotion Recommendation Review (PRR) Board * promotion to COL in the AGR program, if merited, with a retroactive date of rank (DOR) and payment of all back pay due as a result * a personal appearance 2. The applicant states: a. He should be granted relief from the June 2015 ARARNG Title 32 AGR ASMB so he can transfer to Title 10 AGR status as promised by senior officials in October 2014. His records should be considered for the 2015 and 2016 Title 10 COL promotion boards to determine where he stands with his peers. If his record merited promotion to COL in the ARNG, he should be promoted with a retroactive DOR and pay. b. He was advised by senior officials verbally, in correspondence, and through policy (Personnel Policy Memorandum (PPOM) 13-002) that his non-selection by the ASMB would not prohibit his transfer from Title 32 AGR to Title 10 AGR. Therefore, he wrote his letter to The Adjutant General (TAG), ARARNG and the ASMB president to voluntarily non-compete for retention in the Title 32 program. The guidance and policy were apparently in direct conflict with Army Regulation (AR) 135-18 (AGR Program), table 2-6, rule k, and he now has given up his AGR position in Arkansas and is prohibited from entry into Title 10 AGR. He already missed one Title 10 promotion board for O-6 and the deadline for the next board is 27 June 2016. c. There are already personnel in the ARNG in both Title 10 and Title 32 active duty status (AGR, mobilized, or active duty for operational support (ADOS)) that benefited from the ARNG Policy Division guidance of PPOM 13-002 signed by Lieutenant General (LTG) WEI, then Director, ARNG (DARNG). This was the current policy at the time of his ASMB board in 2015. This policy was a continuation of the standard business practices of the ARNG since [personnel] Life Cycle Management was enacted approximately 10 years ago by the Assistant Secretary of the Army (ASA) (Manpower and Reserve Affairs (M&RA)). d. He feels it is an injustice that he is now being held to a higher standard based upon an Army regulation that was written in 2004 and predates Life Cycle Management. He has an approved packet to transfer to Title 10 AGR but it is pending an Army Board for Correction of Military Records (ABCMR) decision before it will be processed. This transfer has dragged on for 22 months and his career suffers as a result. He provides a redacted AR 15 (Procedures for Administrative Investigations and Boards of Officers) investigation and findings that establish a timeline for his situation. At this time, without favorable action from the ABCMR, he will retire with 20 years active Federal service on 30 April 2017. 3. The applicant provides: * statement of support * three DA Forms 67-9 (Officer Evaluation Report (OER)) for the rated periods 23 August 2011 thru 1 March 2012, 2 March 2012 thru 1 March 2013, and 2 March thru 31 July 2013 * 18 memoranda, dated between 15 January 2013 and 9 March 2016 * two DA Forms 67-10-2 (Field Grade Plate (O4-O5; CW3-CW5 OER)) for the rated periods 1 August 2013 thru 31 July 2014 and 1 August 2014 thru 31 July 2015 * National Guard Bureau (NGB) Form 34-1 (Application for AGR Position), dated 2 October 2014 * 19 pages of email, dated between 5 December 2014 and 18 December 2015 * Information Paper, dated 26 August 2015 * DA Form 1574 (Report of Proceedings by Investigating Officer (IO)/Board of Officers), dated 11 February 2016 * four DA Forms 2823 (Sworn Statement), dated between 11 and 22 March 2016 * two pages titled Timeline of Events for [the Applicant's] accession onto Title X AGR from Title 32 AGR, undated * one page titled [the Applicant] (T32 to T10 Timeline), undated * one page titled Chronology of Article 15-6 Investigation, undated * one page from AR 135-18 * six page printout of Title 10, U.S. Code (USC), section 12011 * four page printout of Title 10, USC, section 12012 CONSIDERATION OF EVIDENCE: 1. The applicant was born on 30 July 1971. He was appointed as a Reserve second lieutenant in the ARARNG on 1 October 1993 and executed an Oath of Office on that date. He served continuously as a member of the ARNG in various positions of increased responsibility and throughout several periods of active duty service. On 1 October 2011, he was promoted to lieutenant colonel (LTC)/O-5. 2. On 3 November 2013, by memorandum, the ARARNG issued him a Twenty-Year Letter. This memorandum notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 3. He is currently serving in the ARARNG in pay grade O-5 in an AGR status under the authority of Title 32. 4. The applicant provides a statement of support, dated 1 June 2016, wherein Major General (MG) MHB, TAG, ARARNG, stated: a. The applicant, while on a Title 32/10 officer exchange at the ARNG directorate, accepted an offer from the ARNG G-3 to transfer from Title 32 AGR in Arkansas to Title 10 AGR [Federal] in October 2014. The previous TAG signed the appropriate endorsement for his packet submission. This packet was updated in early 2015 with his (MG MHB's) endorsement as the transfer had not yet occurred. b. The Title 10 orders were not processed prior to the announcement of an internal force shaping mechanism for Arkansas (ASMB) and therefore the applicant had to submit a packet. However, based on erroneous guidance from senior officials, subject matter experts, and an incorrect ARNG Personnel Policy (PPOM 13-002), the applicant submitted a memorandum for record to this office and to the ASMB president voluntarily removing himself from competing for retention in the ARARNG Title 32 AGR program. c. He was confident in stating that the applicant, had he chosen to compete, would have done exceedingly well against his ARARNG peers and was a future leader in the ARNG. His noble decision to remove himself from competition allowed another highly qualified officer to remain in the ARARNG AGR program and continue to add value to the organization. This decision, based on faulty guidance, should not be held against him. d. The applicant is a highly motivated officer who had two successful company commands at company and field grade ranks (during two separate deployments) and key developmental assignments at battalion, brigade, State, and ARNG directorate levels. He [graduated] from the U.S. Army War College on 22 July 2016 and holds a top secret security clearance adjudicated in 2013. The applicant is not flagged or under any pending investigations. 5. In the processing of this case an advisory opinion was received on 15 August 2016 from the Chief, Personnel Policy Division, NGB. The advisory official recommended denial of the applicant's request and opined: a. The applicant requests relief from the ARARNG Title 32 AGR ASMB in order to transfer to Title 10 AGR; consideration for promotion to COL by the 2015 and 2016 PRR Board; and, if selected for promotion under the provisions of Title 10 AGR, to be promoted with a retroactive DOR and pay. b. The DARNG, LTG TJK, in his memorandum dated 4 August 2015, subject: ARARNG Calendar Year 2015 (CY15) AGR ASMB Approval, determined the results of the CY15 ARARNG AGR ASMB conducted on 10 June 2015, was conducted in a fair and impartial manner with adherence to all applicable authorities. The DARNG, in the same memorandum, concluded the board results represented the selection objectives of MG MHB, TAG, ARARNG, as well as the needs of the ARARNG. c. The applicant, a member of the ARARNG as a Title 32 AGR officer, serves on a One Time Occasional Tour (OTOT) position with the NGB G-3. The governing policy, ARNG Officer AGR Release from Active Duty Board (REFRAD) and ASMB Guidance for calendar year (CY)13 to CY15 (ARNG-HRH PPOM 13-002), dated 15 January 2013, paragraph 8, subparagraph i, clearly 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. Should the officers be selected for release, they will be REFRAD in accordance with the established notification period or upon completion of the OTOT, whichever is later." d. Furthermore, the same policy, supported by the ASA (M&RA), "Implementing Guidance for AGR Life Cycle Management Process," dated 12 April 2013, provides that the DARNG or TAG is limited to, "the authority to discard the board results and empanel a new board if the original board failed to meet the selection objectives or there was a material error in [the] conduct of [the] original board." Neither policy affords the convening authority with the ability to selectively give relief to an individual officer and leave all other results in place. e. During January 2015, the applicant was notified of the upcoming ARARNG Title 32 AGR ASMB which convened on 10 June 2015. He was considered for retention or non-retention. Pending an available control grade for a Title 10 AGR new hire position, with the support of the NGB G-3 and NGB Chief of Staff, a bridging strategy was established to allow the applicant to continue on his OTOT orders until 20 January 2016. On 7 June 2015, the applicant sent a memorandum to the Arkansas ASMB board president, informing them of his intent, "I do not wish to compete for retention in the ARARNG Title 32 Program beyond 20 years active Federal service. I currently serve on Title 10 at Arlington Hall Station as the Assistant Chief of Training for the Army National Guard. My tour currently goes through 2016 and I intend to remain on Title 10 at least until 20 years active Federal service." On 12 August 2015, the applicant was notified that he was selected for release from the Arkansas Title 32 AGR program on 30 April 2017 [date he reaches 20 years active Federal service]. f. Even if MG MHB justified a need to empanel a new ASMB based on criteria exclusively stated in PPOM 13-002, paragraph 8, subparagraph k of same policy, "Reference 1.q, paragraph 4," provides that the intent of the ASMB is to "avoid involuntary separations when possible." Therefore, selection by the ASMB does not preclude other future active or inactive service. If otherwise eligible, AGR officers selected for release may retire; they may revert to traditional status in their State or in another State via interstate transfer; they may seek other active duty opportunities pursuant to the Active Component "Call to Duty Program"; they may pursue AGR opportunities outside the State in which they were selected for release by the ASMB; they may mobilize under Title 10, U.S. Code (USC), sections 12302 or 12304; they may serve on ADOS pursuant to Title 10 USC 12301(d); and they may apply for other non-AGR Full Time National Guard Duty (FTNGD) Operational Support, FTNGD-Counterdrug, or military technician positions. That in and of itself does not lead to the applicant's accession as a direct new hire into the Title 10 AGR program. g. Recommend disapproval of relief of the ARARNG ASMB. The applicant may continue in an active status on Title 10 AGR if selected and hired. The applicant received notification on 20 October 2015 that his Title 10 AGR application was boarded on 13 to15 October 2015 and if selected, he would be notified by the hiring Office of Primary Responsibility (OPR) Assignments Officer. h. Recommend disapproval of consideration for the CY15 and CY16 PRR boards. The applicant is currently a Title 32 Soldier on a Title 10 OTOT and in accordance with Title 10 ARNG Reserve Life Cycle Management Strategy and Plan (ARNG-HRH Policy Memorandum Number 13-041), dated 12 December 2013, Annex A, paragraph 9, subparagraph h, "OTOT Soldiers will not compete for promotion or schools within the Title 10 AGR program." i. This advisory opinion was coordinated with the NGB Personnel Policy Division, Active Duty and FTNGD Policy Branch. The ARARNG does concur with this recommendation. 6. In a response to the advisory opinion, dated 22 August 2016, the applicant stated: a. He concurs with the portion of the advisory opinion to recommend disapproval of his original request for relief from the ARARNG ASMB in so much that relief from the ARARNG ASMB is not required for accession into the Title 10 AGR program. b. The governing ARNG policy at the time of the wrongdoing (PPOM 13-002) affirms that he did not require relief from the ARARNG ASMB to be eligible for hire in the Title 10 AGR program. Furthermore, the advisory opinion specifically states: ?Recommend disapproval of relief of the ARARNG ASMB. The applicant may continue in an active status on Title 10 AGR if selected and hired. The applicant received notification on 20 October 2015….and if selected, he would be notified by the hiring Office of Primary Responsibility (OPR) Assignments Officer." Therefore, his request for relief is no longer necessary to right the wrong in his case. c. He concurs that his packet should not be considered for promotion to COL by the 2015 PRR board and subsequently no adjusted DOR or back pay is required. However, he disagrees with the opinion to disapprove consideration for promotion to COL by the 2016 PRR board based on the fact that he was eligible for hire into the Title 10 system prior to the PRR board cutoff date on 27 June 2016. His packet was denied based solely on the opinion that the results of the ARARNG ASMB prohibited him being hired into the Title 10 AGR program. Now that the NGB advisory opinion negates that requirement, his PRR board packet should be added to a Standby Advisory Board (STAB) if he is hired into the program. REFERENCES: 1. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and commissioned and warrant officers of the U.S. Army Reserve. Promotion reconsideration by an SSB or an STAB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. 2. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. The applicant's request for a personal appearance hearing was considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The applicant initially requested relief from the ARARNG Title 32 AGR ASMB, transfer to a Title 10 AGR status, consideration for promotion to COL under the criteria of the 2015 and 2016 PRR Board, and promotion to COL in the AGR program, if merited, with a retroactive DOR and payment of all back pay due as a result. 3. He subsequently agreed with the advisory opinion on 22 August 2016 and now only requests consideration by a STAB for promotion to COL under the criteria of the 2016 PRR Board if he is hired into the Title 10 AGR program as he was eligible to be hired into the Title 10 system prior to the PRR board cutoff date on 27 June 2016. 4. The evidence of record shows he is clearly serving on active duty orders under the authority of Title 32 on a Title 10 OTOT thus he was not eligible for promotion consideration by the COL 2016 PRR Board. The fact that he may have been eligible to be hired into the Title 10 system prior to the 2016 PRR board does not constitute an erroneous non-consideration as defined by regulation. Therefore, there is no justification for a SSB/STAB. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011816 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011816 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2