IN THE CASE OF: BOARD DATE: 14 February 2023 DOCKET NUMBER: AR20220008509 APPLICANT REQUESTS: * correction of his records to reflect 20 years of qualifying service resulting in entitlement to a Reserve retirement * in the alternative, reinstatement in the U.S. Army Reserve (USAR) at the rank of major (MAJ)/O-4 * correction of his Officer Evaluation Report (OER) ending on 24 May 2018 * a personal appearance via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Brief in Support of Application for Correction of Military Records * Legal counsel letter, 1 June 2021 * Email communication * Legal counsel letter, 29 July 2021 * Memorandum – Subject: Withdrawal of Federal Recognition, 14 June 2018 * National Guard Bureau (NGB) Form 23B (Army National Guard (ARNG) Retirement Points History Statement), 3 February 2020 * Memorandum – Subject: Supplemental Assignments of Errors Regarding Withdrawal of Federal Recognition Board of Respondent, 3 March 2020 * Memorandum – Subject: Reassignment of Joint Multinational Training Group Personnel Ukraine, 29 December 2017 * Leave and Earnings Statement * Memorandum – Subject: Withdrawal of Federal Recognition (WOFR) Board Held on 20 September 2019, 21 September 2019 * Memorandum – Subject: Respondents Final Witness List, 19 September 2019 * Email communication * DA Form 67-10-2 (Field Grade Plate, OER), 24 May 2018 FACTS: 1. The applicant, represented by legal counsel, provides in pertinent part that he was improperly released from the NYARNG on 25 March 2020, as a result of the WOFR (Withdrawal of Federal Recognition) board convened on 20 September 2019. As such, the applicant requests reinstatement in the USAR and the erroneously completed evaluations be corrected. The applicant previously petitioned the Adjutant General of for reinstatement, the Commander, First U.S. Army and the NGB for reversal of the WOFR findings but has not received a response. Counsel argues that there were several procedural errors made in the conduct of the WOFR thereby denying the applicant due process. Further, the primary allegations that were considered and used against him during the board were the subject of (2) Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigations wherein the applicant was cleared of any wrongdoing. The details of these allegations are further provided in their entirety for the Board's review within the supporting documents. Counsel raises specific attention to the following 3 elements of contention: * Procedural and Substantive Errors in the Board Proceedings: Lack of Notice and Deficient Proof – Improper Notice of Government Expert Witness and Improper Notice of Alleged misconduct Categorized as "Rape" * Improper Burden Shifting: Flawed Due Process in National Guard Regulation (NGR) 635-101 (Efficiency and Physical Fitness Boards) and Applicability of AR 135-175 (Separation of Officers) * Errors in Relief for Cause OER a. Procedural and Substantive Errors in the Board Proceedings: Lack of Notice and Deficient Proof – Counsel argues that the board recorder failed to provide proper notice of the expected testimony to be provided by the "expert witness." Further, when counsel attempted to speak with this witness before he provided his testimony, he declined to do so. Regarding the alleged rape, counsel contests that this alleged misconduct was previously investigated (2006), the applicant was never charged and was merely used for the sole purpose of inflaming the specifications. b. Improper Burden Shifting: Flawed Due Process in NGR 635-101 - Counsel objects that the language in this regulation, which shifts the burden of proof from the Government to the applicant is unconstitutional and otherwise deprives him of his right to a fair hearing. Further, the procedural protections in AR 15-6 are not included in this regulation to include the burden of proof. c. Errors in Relief for Cause Officer Evaluation Report – Counsel argues that the applicant received a relief for cause evaluation for the period of 21 September 2017 - 24 May 2018, which did not remotely include adequate reasons for such a negative review. Counsel notes that the applicant was not informed at any time during the rating period that his performance was unsatisfactory. 2. A review of the applicant's available service records reflects the following: a. On 30 July 2003, the NGB issued Special Orders Number 194 AR announcing Federal Recognition of the applicant's initial appointment in the NYARNG at the rank of second lieutenant (2LT), effective 29 June 2003. b. The applicant was promoted to major on 2 June 2016. c. On 20 March 2018, the applicant received an Administrative Letter of Reprimand for wrongfully appropriating food from Army Lodging without being a paying guest during the period of November 2017 – February 2018. The applicant was also found to have invited a married woman to his quarters on 16 January 2018, while being married himself. d. On 28 May 2018, the applicant received a General Officer Memorandum of Reprimand for conduct that was incompatible with the behavior expected of members of the NYARNG in that during the month of January 2015, the applicant followed and solicited a female through the streets of causing her to fear for her personal safety. In May 2017, the applicant acted in an inappropriate manner towards a subordinate female while transporting her in his private vehicle. Lastly, in October 2017, while serving in Germany, the applicant acted in a manner causing fear towards a civilian female when he brought her to his quarters without any valid reason and under circumstances where she feared for her personal safety. The applicant acknowledged receipt of the memorandum and declined to submit matters on his behalf. e. The applicant received a Relief for Cause OER covering the rating period 21 September 2017 through 24 May 2018. He was rated as "Capable" and his rater stated his competencies as a field grade officer can be inconsistent at times. He can be proactive in some tasks but not in others. He had average critical thinking skills among his peers in solving complex problems. His senior rater directed the relief for cause based on the applicant reaching his maximum potential. He proved to be ineffective with little or no capability or initiative for planning and executing field grade tasks needed to coordinate across larger staffing processes. Because of the applicant's character and performance he should not be considered for future assignments requiring complex field grade duties and responsibilities. The senior rater rated him as “Qualified." He provided comments in an attached Memorandum for Record that stated: (1) I write in response to the revised comments to the OER which is inexplicably fifteen (15) months overdue. First and foremost, this inordinately delayed OER has irreparably harmed my career progression by making me ineligible to enroll in the required professional military education; a prerequisite for consideration for promotion to the next rank. Specifically, my rating chain initially provided this OER to me on 30 May 2019, which was, itself, well over 12 months after the completion of my rating period. I digitally signed the OER and included my written response on 28 June 2019. On 6 August 2019, my senior rater summarily ordered me to remove my digital signature to permit the rater to alter the already belated OER. The altered OER was sent back to me for signature on 9 August 2019. (2) Second, this relief-for-cause OER is legally unfounded and factually unjustified. Tellingly, my command did not provide me any verbal or written counseling during this rating period that remotely justified their negative comments. Simply stated, they never told me, during the entirety of this rating period, that my performance was unsatisfactory. Even more, my rater only vaguely states that I was "inconsistent in establishing critical staff integration with higher headquarters staff... resulting in key staff tasks being delayed or incomplete." Similarly, my senior rater ambiguously avers that my performance indicated "little or no capability or initiative for planning and executing field grade tasks needed to coordinate across larger staffing processes." It cannot be over emphasized that I was not informed of these generalized complaints until 30 May 2019, which is when I received the initial OER. (3) Finally, my senior rater states that "[b]ecause of my character he should not be considered for future assignments requiring complex field grade duties and responsibilities." This is another example of an unsubstantiated statement which is categorically unjust. f. The applicant’s NGB Form 23B (Army National Guard Retirement Points History Statement), prepared on 23 April 2018, shows the applicant completed at the time 16 years of qualifying service for retirement. g. On 7 April 2020, the NYARG issued Orders Number 0000311234, announcing the applicant's involuntary separation from the NYARNG in accordance with AR 635- 100 (Officer Personnel) due to substandard performance, effective 25 March 2020. h. On 8 April 2020, the NGB issued Special Orders Number 101 announcing withdrawal of the applicant's Federal Recognition, effective 25 March 2020. i. The applicant's records are void of the results of a commander's inquiry pertaining to his relief-for-cause OER. 3. The applicant provides the following a: a. Legal counsel letter dated 1 June 2021, reflective of the applicant's request for the disapproval of the findings of the WOFR board and reinstatement in the NYARNG. Counsel argues the same elements of contention noted in the opening statement to this Board. This letter is provided in its entirety for the boards review within the supporting documents. b. Email communication, reflective of legal counsel being redirected from the First Army Headquarters to the Chief, NGB to have the submitted request for relief addressed. c. Legal counsel letter dated 29 July 2021, reflective of the applicant's request for the disapproval of the findings of the WOFR board and reinstatement in the NYARNG. Counsel argues the same elements of contention noted in the opening statement to this board. This letter is provided in its entirety for the boards review within the supporting documents. d. Memorandum – Subject: Withdrawal of Federal Recognition dated 14 June 2018, reflective of the Commanding General, Headquarters NYARNG recommendation that action be taken to withdraw the applicant's Federal Recognition as a member of the NYARNG for moral or professional dereliction and for acts of personal misconduct. e. NGB Form 23B dated 3 February 2020, reflective of a chronological account of the applicant's accrual of 18 years of qualifying service. f. Memorandum – Subject: Supplemental Assignments of Errors Regarding Withdrawal of Federal Recognition Board of Respondent dated 3 March 2020, reflective of the noted errors submitted by the applicant's legal counsel with regard to the WOFR board conducted. This letter is provided in its entirety for the boards review within the supporting documents. g. Memorandum – Subject: Reassignment of Joint Multinational Training Group Personnel Ukraine dated 29 December 2017, reflective of the applicant being reassigned to the 7th ATC Headquarters, Germany from 7 October 2017 - 30 September 2018 in order to provide support as a Liaison Officer. The applicant was provided on base housing with entitlement to $17.35 per day (per diem) for meals and incidentals. h. Leave and Earnings Statement reflective of the applicant's pay and entitlements for the end of the month (EOM) August 2018. i. Memorandum – Subject: WOFR Board Held in on 20 September 2019 dated 21 September 2019, reflective of legal counsel's contention with the WOFR board conducted noting the provisions set forth in NGR 635-101, Section III, paragraph 16(a)(3) wherein it provides that "if the board committed an error that materially prejudiced a substantial right of the officer, the commander may close the case favorably to the respondent." Counsel restates the elements of contention previously provided in his opening statement to this Board. This letter is further provided in its entirety for the Boards review within the supporting documents. j. Memorandum – Subject: Respondents Final Witness List dated 19 September 2019, reflective of what appears to be redacted responses provided by witnesses involved in the WOFR board. k. Email communication, reflective of a submitted request to speak to the "expert witness" mentioned in counsel's opening statement to this Board. The witness declined interest in discussing the upcoming board with counsel. l. DA Form 67-10-2 dated 24 May 2018, reflective of a "relief for cause" evaluation presented to the applicant based upon his professional performance during the period of 21 September 2017 – 24 May 2018. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing 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 hearing 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 found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered a. The Board noted that by law and regulation, Reserve Component members are required to complete 20 years of qualifying service in order to be eligible for non- Regular retired pay. A qualifying year of service for non-Regular retired pay is a full retirement year during which a Regular or Reserve member is credited with a minimum of 50 points. The applicant did not complete 20 qualifying years of service required for notification of eligibility for retired pay at age 60. The available evidence does not offer a basis for issuing him a 20-year letter. b. As far as termination of Federal recognition and/or reinstatement, the Board note that appointments in the ARNG are a function of the State. The Adjutant General recommended action be taken to withdraw the applicant’s Federal recognition as a member of the NYARNG for moral or professional dereliction and for acts of personal misconduct and conduct unbecoming an officer. The NGB withdrew Federal recognition from the applicant. The Board determined there is neither an error nor an injustice in the action taken by The Adjutant General or the NGB. c. The applicant received a Relief for Cause OER covering the rating period 1 September 2017 through 24 May 2018. The Board noted the absence of evidence that shows he appealed the OER through the NGB or requested a Commander’s Inquiry. The Board also noted there is insufficient evidence to support a conclusion that the contested report contains administrative or substantive errors or that it was not prepared in compliance with applicable regulations and policies. Furthermore, the applicant has not shown the evaluations rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time the contested OER was prepared or that they exercised faulty judgment in evaluating him as they did. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. NGR 635-101 (Personnel Separations - Efficiency and Physical Fitness Boards) provides that the Chief, NGB, acting for the Secretary of the Army, will review and approve the findings and recommendations of a board of officers convened by area commanders to determine whether the Federal Recognition of officers of the ARNG should be withdrawn by reason of incapacity or general unfitness. If the approved findings and recommendations are against the Officer, the Chief, NGB will withdraw the officer's Federal Recognition. a. Section II (Reasons for Action to Withdraw Federal Recognition) provides that Officers substandard in performance of duty or conduct, deficient in character, below standards for retention or otherwise unsuited for military service should have their Federal Recognition withdrawn. b. Section IV (Boards of Officers) provides the general provisions governing boards of officers convened under the provisions of this regulation to afford the officer a fair and impartial hearing to determine whether he should be retained in the Army National Guard. The burden of proof rests with the officer to produce convincing evidence that his Federal Recognition should not be withdrawn. In the absence of such a showing by the officer, the board must recommend withdrawal of Federal Recognition. 2. AR 135-175 (Separation of Officers) paragraph 2-13 (Acts of Misconduct or Moral or Professional Dereliction) provides that the standard of proof required by AR 15–6, authorizes a commander to initiate separation proceedings for moral or professional dereliction. Officers may be discharged for acts of serious or recurring misconduct punishable by military or civilian authorities, intentional neglect, failure to comply with applicable directives, receipt of a "Relief for Cause" OER involving acts of misconduct or moral or professional dereliction or for conduct unbecoming of an Officer. 3. AR 135-180 (Retirement for Non-Regular Service) paragraph 2-2 (Basic Qualifying Service Requirements) provides that to be eligible for retired pay at or after age 60, an individual need not have military status at the time of application, but must have completed one of the following: * a minimum of 20 years of qualifying service computed under Title 10, United States Code (USC), section 12732; or, * 15 years of qualifying service, and less than 20, computed under Title 10, USC, section 12732, if the individual is to be separated because the Soldier has been determined unfit for continued Selected Reserve service, and none of the conditions in Title 10, USC, section 12731b exist 4. AR 623-3 (Evaluation Reporting System) states in: a. Paragraph 1-11 (Commander's or Commandant's Inquiry) states during the evaluation process or after it has been completed, when a commander or commandant discovers that an evaluation report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, he or she will conduct an inquiry into the matter. The definition of a rendered evaluation report is one that is authenticated by all designated rating officials with a senior rater's intent to present the final evaluation report to the rated Soldier for authentication, or apply the appropriate statement in the absence or inability for the rater Soldier to authenticate. The Commander's or Commandant's Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the evaluation report, the compliance of the evaluation with policy and procedures established by Headquarters Department of the Army, and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the accurate evaluation of a rated Soldier by a rating official that was made in good faith. b. Paragraph 4-3 states Commanders for OERs are required to look into alleged errors, injustices, and illegalities in evaluation reports. Upon receipt of a request for a Commander’s or Commandant’s Inquiry, the commander or commandant receiving the request will verify the status of the OER in question. If the evaluation has been submitted and received at Headquarters Department of the Army for processing but has not been filed in the Soldier's Army Military Human Resources Record, the commander will notify the Evaluations Appeals Office via email with a request to have the evaluation placed in an administrative temporary hold status until completion of the inquiry. c. Paragraph 4-4 states alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander’s or commandant’s attention by the rated Soldier or anyone authorized access to the report. The primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. d. Paragraph 4-5 states a Commander’s or Commandant’s Inquiry will not be used to document differences of opinion among members of the rating chain about a rated Soldier's performance and potential. The evaluation system establishes rating chains and normally relies on the opinions of the rating officials. Rating officials will evaluate a rated Soldier and their opinions constitute the organization’s view of that Soldier. However, the commander may determine through inquiry that the report has serious irregularities or errors. 5. AR 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. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008509 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1