IN THE CASE OF: BOARD DATE: 13 September 2021 DOCKET NUMBER: AR20200009886 APPLICANT REQUESTS: through counsel: * Reconsideration of his previous request for appointment as a Reserve commissioned officer in the Army National Guard (ARNG) in the rank of major (MAJ) * If unable to grant relief, he requests an age waiver to apply for commissioning at a rank that is commensurate of his education, skills, and training without re- enrolling in Officer Candidate School (OCS) * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Brief by applicant's counsel * Power of Attorney * Applicant's affidavit * Army Board for Correction of Military Records (ABCMR) Docket * Request for reconsideration of ABCMR Docket * U.S. District Court for the Western District of Texas * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 4 November 1989 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's cases by the ABCMR in Docket on 9 April 2015. 2. The applicant states through counsel, he is seeking another reconsideration based on new evidence. He contends that his response to the Board conclusions and the 2017 Department of Defense (DoD) Consolidated Adjudications Facility (CAF) Adjudicative Guidelines constitute new evidence warrants a reconsideration. a. The applicant is seeking a commission in the U.S. Army or an age waiver that would allow him to commission. After he completed OCS (from 12 June – August 2006), he received a certificate of completion evidencing his graduation, which was valid for two years. It was the unit who failed to process the security clearance request in a timely manner which prevented the applicant from commissioning prior to age 42. The unreasonable delay in the processing that denied his opportunity to commission was the injustice that was committed against the applicant. b. Upon graduation from OCS, the applicant was 39-years of age and the only requirement for commission that remained was the receipt of a security clearance. During the following 2-years, the applicant transferred to the Arizona (AZARNG); however, he never reported and was assigned to the U.S. Army Reserve (USAR) Control Group (Annual Training). In July of 2008, he transferred to the New Mexico (NMARNG), where he learned that his unit in Illinois (IL) never processed his request for a security clearance and a month later the 2-year window for his OCS completion certificate expired. In November 2008, the applicant was granted his security clearance; however, he was over the maximum age to reenroll in OCS. c. The applicant requests the Board reconsider his request to commission in the rank of MAJ/O-4 in the Field Artillery Corps or grant him an age waiver that would allow him to commission based on the needs of the Army without reenrolling in OCS at a rank that would be commensurate with his education, skills, and training. The applicant has a Bachelor of Science in Business Administration and a Master of Business Administration in Accounting and Finance. 3. A review of the applicant's service record shows: a. DD Form 214, ending on 4 November 1989, shows he enlisted in the Regular Army (RA) on 5 November 1985. He was honorably discharged from active duty on 4 November 1989 and assigned to the USAR Control Group (Reinforcement). He completed 4-years of active service. b. The applicant's service record is void of evidence of his reassignment or enlistment in the ARNG. c. On 31 March 2006, Orders Number 090-251, issued by the Department of Military Affairs State of IL, the applicant was attached to Company B (OCS), 2nd Battalion (BN) (General Studies), 129th Regiment (Regional Training Institute (RTI) for OCS Training, Pay, and Administration effective 1 April 2006. d. On 17 July 2006, Orders Number 198-227, issued by the Department of Military Affairs State of IL, the applicant was relieved from attachment to Company B (OCS), 2nd BN (General Studies), 129th RTI effective 17 July 2006. e. The applicant successfully completed OCS course requirement during the period of 12 June through 27 August 2006 and was declared a graduate. f. On 25 September 2006, the applicant acknowledged he was accepted by the State of AZ and he must report no later than 25 October 2006, it was his responsibility to contact his new unit to report any delay. He also acknowledged that if he failed to report he would be separated from the ARNG and receive an uncharacterized discharge with a Reentry Eligibility (RE) code of 3 which disqualifies from reenlistment without a waiver. g. On 4 October 2006, Orders Number 277-052, issued by the Department of Military Affairs State of IL, the applicant was transferred to Company E, Brigade (BDE) Support BN, AZARNG effective 25 September 2006. h. On 21 November 2006, Orders Number 325-623, issued by the Joint Force Headquarters (HQs), AZ, the applicant was transferred to Company E, 29th BDE Support BN effective 15 November 2006 by the individual's request. i. The applicant was released from the ARNG on 5 February 2007 with an uncharacterized character of service under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-36j (Failure to Report to Gaining State upon Interstate Transfer) and assigned to the USAR Control Group (Annual Training). National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he completed 4-months and 11-days of service. j. That applicant's NGB Form 23B (ARNG Retirement Points History Statement) shows during the period of 25 September 2006 through 5 February 2007 he did not conduct any duty in an active duty or Inactive-Duty Training (IDT) status. k. On 16 February 2007, Orders Number C-02-705568, issued by the U.S. Army Human Resources Command (HRC), St. Louis, MO, the applicant was assigned to the USAR Control Group (Reinforcement) effective 16 February 2007. Additional instructions show the applicant did not have a security clearance. l. On 10 March 2008, a request for a waiver was submitted on the applicant for failure to report to gaining State upon interstate transfer and RE code 3 for enlistment in the ARNG. m. On 12 March 2008, the request for waiver was approved by the Department of Military Affairs State of New Mexico (NM) provided the applicant was otherwise qualified. n. On 14 April 2008, a request for a medical waiver was submitted on the applicant for enlistment in the ARNG. o. On 2 July 2008, the NGB approved the medical waiver for the applicant. p. On 3 July 2008, Orders Number C-07-812901, issued by HRC, the applicant was assigned to the NMARNG by reason of enlistment effective 3 July 2008. Additional instructions show the applicant did not have a security clearance. q. On 2 December 2008, Orders Number 337-056, issued by the State of NM Department of Military Affairs, the applicant was transferred to Joint Force HQs, Santa Fe, NM effective 2 December 2008 on the applicant's request. r. The applicant turned 42-years of age on 2 March 2009. s. The applicant was honorably discharged from the ARNG on 2 July 2009. NGB Form 22 shows the applicant completed 1-year of service. It also shows in block 17 (Personnel Security Investigation) the applicant had an interim secret security clearance which was completed on 14 November 2008. t. On 30 July 2012, a request for a medical waiver was submitted on the applicant due to a physical for mixed hyperlipidemia, hypertension, and elevated cerebral vasomotor regulation for enlistment in the ARNG. u. On 19 August 2012, the NGB approved the medical waiver on the applicant. v. The applicant enlisted in the NMARNG on 4 September 2012. w. On 19 March 2013, the applicant was notified his application was denied by the Board in ABCMR Docket for correction of his service record to show he was: * Commissioned as a MAJ, Finance Corps, August 2006 * Authorized incentive bonuses in the 2006 Commissioned Officer Program * Enrolled in the Student Loan Repayment Program (SLRP) and payment of loans for him and his wife * Authorized pay as a MAJ/O-4 with 20-years of service * Offered option to transfer to another military department The Board determined that the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the overall merits of the case were insufficient as a basis for correction of the applicant's records. x. On 22 November 2013, Orders Number 326-027, issued by State of NM Department of Military Affairs, the applicant was honorably discharged for the ARNG effective 3 September 2013 for an expiration term of service. y. On 14 April 2015, the applicant was notified his applicant for reconsideration was denied by the Board in ABCMR Docket for reconsideration for the correction of his service record to show he was: * Commissioned as a MAJ/O-4, Finance Corps, in August 2006 * Authorized incentive bonuses based on 2006 Commissioned Officer Program * Enrolled in the SLRP and payment of loans for him and his wife * Authorized pay as a MAJ/O-4 with 20-years of service * Offered the option to transfer to another military department The Board determined there was insufficient evidence to support the applicant requested relief. In this case in a response to a Congressional inquiry on 12 May 2011, it was stated being granted a commission in any military service was a privilege and not an entitlement. The applicant's inability to accept a commission within 2-years of completion of OCS was a result of his financial problems and his personal career decisions. By the time the applicant's security clearance was approved, he was too old to re-enroll in OCS and complete the requirements prior to becoming 42-years of age. The age limit for initial appointment of an officer is based on statute. z. The applicant service record is void of any evidence of a NGB Form 89 (Proceedings of a Federal Recognition Board). 4. The applicant provides: a. Power of attorney that the law firm Tully Rinckey, PLLC was designated to serve as the applicant's attorneys with respect to his application to the Board for his reconsideration. b. Affidavit from the applicant that states: (1) He reenlisted in the ILARNG for attendance to OCS on 13 December 2005, and was assigned to the 1244th Transportation Unit. OCS was to begin in March 2006 when he was assigned to the 129th RTI, this was his initial acceptance into the OCS program. In March or April of 2006, the applicant stated he completed the required paperwork for his security clearance and turned it into the 129th RTI Personnel Department. Shortly thereafter, he was fingerprinted at the Hickory Hills Police Station in IL, which was also turned into the 129th RTI Personnel Department. To his recollection, he never provided a release for any of his records to include medical, law enforcement, and financial; however, he completed his chapter 2 physical on 1 April 2006 after he was in the OCS program. (2) It was not until he inquired with the Personnel Security manager in NM did he learn that the 129th RTI did not initiate his application for a security clearance. The applicant stated he completed everything he was required to do for the processing of the security clearance and to his knowledge there was nothing he could do to expedite the process. After the submission of the required documents, it was the responsibility of his unit to complete the process in a timely manner. c. U.S. District Court for the Western District of Texas Case Number MO:17-CV- XX31-DC, denying the defendant (ABCMR) motion for judgement on pleadings or summary judgement. The court denied defendant's motion for judgement on the pleadings and grants the motion for summary judgement which the cause was dismissed. The court finds a rational connection exists between the applicant's voluntary transfer from the ILARNG, failure to report to the AZARNG, and general failure to otherwise pursue an active Reserve status during the majority of the 2-year period and the Board's decision that his actions or lack thereof resulted in the security clearance processing delay. It was also rational that someone who fails to remain active over 2- years would not be extended the discretionary relief offered for a waiver of maximum age limitation be considered; becomes over age due to administrative processing. BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record and regulatory guidance. One possible outcome was to grant relief. However, the majority of the Board concluded that absent documentation showing the applicant was impeded from taking timely action to ensure he met all standard prerequisites as was his responsibility, the burden of proof was not met. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket on 9 April 2015. 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. REFERENCES: 1. Army Regulation (AR) 380-67 (Personnel Security Program), policies and procedures to ensure that acceptance and retention of personnel in the Armed Forces and United States Army, acceptance and retention of civilian employees in the Department of Defense (DOD) and Department of the Army (DA), and granting members of the Armed Forces, Army, DA and DOD civilian employees, DA and DOD contractors, and other affiliated persons access to classified information and assignment to sensitive positions are clearly consistent with the interests of national security. a. Paragraph 2–21 (Limit investigations and access), number of persons cleared for access to classified information shall be kept to a minimum, consistent with the requirements of operations. Special attention shall be given to eliminating unnecessary clearances and requests for Personnel Security Investigations (PSI). b. Paragraph 3–13, appointment, enlistment, and induction of each member of the Armed Forces or their Reserve Components into any of the components of the U.S. Army shall be subject to the favorable completion of a PSI. The types of investigation required are set forth in this section. c. Paragraph 3-14 (Entrance Investigation), DNACI shall be conducted on each commissioned officer, warrant officer, cadet, midshipman, and Reserve Officers Training Candidate, at the time of or before appointment. A secret clearance is a condition of appointment. d. Paragraph 5–6 (Personal data provided by the subject of the investigation), to conduct the required investigation, it is necessary that the investigative agency be provided certain relevant data concerning the subject of the investigation. The Privacy Act of 1974 requires that, to the greatest extent practicable, personal information shall be obtained directly from the subject individual when the information may result in adverse determinations affecting an individual's rights, benefits, and privileges under Federal programs. Accordingly, it is incumbent upon the subject of each PSI to provide the personal information required by this regulation. At a minimum, the individual shall complete the appropriate investigative forms, provide fingerprints of a quality acceptable to the FBI, and execute a signed release, as necessary, authorizing custodians of police, credit, education, employment, and medical and similar records, to provide relevant record information to the investigative agency. 2. National Guard Regulation (NGR) 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), in effect at the time, prescribes policies and procedures governing the appointment, assignment, temporary Federal recognition. a. Paragraph 2-7 (Eligibility criteria), individuals possessing the qualifications outlined below may apply for initial appointment (or reappointment following a break in service) as ARNGUS commissioned officers. Subparagraph b (Age), (2) (Maximum age), (a) Applicants for Federal recognition in the basic branches must not have attained the birthday shown below prior to appointment in the grade indicated. Age limits may be increased by an amount not to exceed length of previous service in the same or higher grade on active duty in any Active Component of the Armed Forces or on active duty and/or in an active status in any Reserve Component of the Armed Forces. (e) Waiver of the maximum age limitation of basic branch commissioned officers may be considered if the applicant: * Becomes over-age due to administrative processing * Possesses outstanding potential, military experience, leadership abilities, and/or educational qualifications that are clearly documented in the application * exceptional cases, the State Adjutant General may waive the maximum age limitations to allow entry and participation in a Federal or State OCS program, Age at date of commission may not exceed 32 years, 6 months * An original appointment as a second lieutenant must be made prior to the individual's 35th birthday. The limitations described in Title 10, United States Code, section 532(a)(2) apply to Army National Guard officers (f) An applicant's age must be such that the officer can serve at least 20 years before Federal recognition will be terminated under mandatory removal requirements prescribed in NGR 635-100. b. Paragraph 2-7i (Security clearance), applicants must have a final secret clearance prior to appointment or reappointment as commissioned officers in the ARNG. The NAC/ DNACI is initiated at the time an application for appointment is submitted. c. Paragraph 2-10g, states, requests for age waivers should be submitted with all supporting documents to the NGB-ARP-CO. d. Paragraph 2-11c, states, graduates of accredited OCS, including those of the other services, may be appointed in the grade of second lieutenant. Graduates who are not qualified for appointment at the time of graduation have two years from the date of the OCS completion certificate to become qualified and receive Federal recognition or become ineligible for appointment. e. Paragraph 2-12d (Validity period), NGB Form 89a (Certificate of Eligibility (Federal Recognition/ARNG) is effective for two years, unless an earlier expiration date is specified on the certificate and provided the holder thereof remains otherwise qualified. 3. Army Regulation (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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009886 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1