ABCMR Memorandum of
APPLICANT REQUESTS: In effect, that he be reinstated with back pay and then
released from active duty on his regularly scheduled expiration of service date of 30
December 1996. Also, that any adverse documentation, to include any reprimand of
record, received subsequent to his filing complaints with the Office of the Inspector
General (IG), be stricken from his records. He believes these actions were reprisals
for filing his IG complaints and that such reprisal violates Army Regulation 600-20,
paragraph. 6-8p(2) and other protections against military “Whistle-Blowers." These
protections prohibit Department of the Army (DA) personnel from taking adverse action
against a soldier for filing an IG complaint or seeking assistance. As such, he believes
that allowing his involuntary retirement to stand would be an injustice.
APPLICANT STATES: Applicant defers to counsel.
COUNSEL CONTENDS: In effect, that the applicant’s involuntary retirement under a
National Guard Selective Early Retirement Board was forced upon him in retaliation for
complaints he filed with the Office of the IG. He was not even eligible for retirement
since he did not yet have 20 years of creditable active duty service. A verbal
reprimand and formal counseling were given to him by the Chief of Staff for his filing of
the complaints. His conduct at no time warranted either verbal reprimand nor a formal
counseling. Evidence in support of the application is provided.
EVIDENCE OF RECORD: The applicant’s military records show:
He initially enlisted in the Regular Army on 25 September 1967. He served 12
months in Vietnam. He was honorably separated on 24 September 1970. He then
served with the U. S. Army Reserve and the Minnesota Army National Guard
(MNARNG) and entered active duty with the MNARNG on 1 December 1977, as an
Active Guard/Reserve (AGR) recruiter until his retirement. He was eligible for a
20-year active duty retirement on 29 September 1994.
On 14 May 1990, the applicant apparently made a complaint to the National Guard
Bureau (NGB) IG Office about State National Guard Association sponsored life
insurance programs. On 18 June 1990, he expressed a concern that his discussion
with the NGB IG Office was not kept confidential.
On 7 May 1991, the applicant wrote the NGB IG Office to express his concern that they
had apparently not yet completed an investigation into his subject of complaint. On 29
August 1991, the NGB IG Office responded to the applicant, stating their legal advisors
reviewed the subject of the complaint and considered the case closed, unless specific
illegalities were discovered.
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On 15 April 1992, the applicant was notified that he had been recommended for
continuation in the AGR program.
Apparently some time in 1992, the MNARNG established a policy to separate Title 32
AGRs, pay grade E-7 through E-9 at 20 years of active federal service (AFS). (Title 32
AGRs who are officers, warrant officers or enlisted personnel E-6 and below must be
separated upon completion of 20 years of AFS; AGRs in grades E-7, E-8 and E-9 need
not be separated until completion of 24, 27 and 30 years of AFS respectively). In a
memo date-stamped 6 January 1993, the NGB Office of the Judge Advocate reviewed
this policy and found it did not appear to be illegal.
In September 1993, the applicant wrote an information paper for the Chief of Staff
expressing a list of concerns with the management of the MNARNG Recruiting and
Retention Detachment. On 1 October 1993, he requested IG action on one of those
On 5 October 1993, the applicant was recommended for continued retention in a unit of
the Army National Guard.
On 14 October 1993, the applicant was reassigned to a Recruiting Operations
Sergeants Major position in the MNARNG.
On 25 October 1993, the MNARNG distributed a memorandum stating that all soldiers,
regardless of rank, will be separated upon reaching 20 years AFS.
On 4 November 1993, a general counseling form noted that the applicant had been
counseled by the chief of staff concerning indicators that the applicant did not support
the senior leadership of the MNARNG, its command policy or command decisions.
The summary of counseling noted the applicant’s projected retirement date was
established at 30 September 1994, which date the applicant apparently Xd out. The
applicant non-concurred in the counseling but did not indicate the reasons for
On 8 February 1994, the NGB informed all State Adjutant Generals that the Fiscal Year
(FY) 94 Defense Authorization Act required a decrement of 506 (Minnesota’s share to
be 58) to the ARNG AGR national end strength with a similar reduction anticipated in
FY 1995. The drawdown plan would be a 5-step process. Step 1 - conduct job fairs;
Step 2 - conduct a Special Tour Continuation Board (STCB) to consider AGR enlisted
in excess grades/skills who are 20-year active duty retirement eligible; Step 3 - offer
Temporary Early Retirement Authority, Voluntary Separation Incentive/Special
ABCMR Memorandum of
Separation Benefit to excess grades/skills, based on availability of funds. Steps 4 and
5 at the time were pending Secretary of the Army approval.
On 17 February 1994, NGB clarified Step 2 to read “…AGR enlisted soldiers who are
20 year active duty retirement eligible.”
Step 1, a job fair, was held on 15 and 16 March 1994. Out of 58 excess personnel, 29
found a suitable transfer.
On 10 June 1994, the applicant was notified that an STCB considered him for retention
in the AGR program and determined that he should be separated from the program on
30 September 1994. The notification stated that the board’s action was not based on
performance and that he was, in all respects, an outstanding non-commissioned officer.
Given the State’s current strength posture, it was in the best interests of the MNARNG
to separate all soldiers who would be eligible for an active duty retirement by 30
(Two E-9s in the MNARNG were eligible for consideration by this STCB, the applicant
and one other, and both were approved for separation with a separation date of 30
September 1994. Of the 12 States that were authorized to hold an STCB, 3 others
also separated all of their 20-year retirement eligible soldiers.)
On 24 and 27 June 1994, the applicant submitted to The Adjutant General rebuttals to
his selection for separation. He stated he believed the result of the STCB was the
means to an end, a carefully orchestrated conspiracy, directed by his chief of staff, and
carried out by him and other members of his staff. He believed it was a direct reprisal
for his addressing soldier concerns. He believed he was not adequately represented
during the conduct of the STCB because there was no AGR member present. He
believed that he was not eligible for consideration by the STCB because he did not yet
have 20 years AFS.
On 18 July 1994, he submitted a rebuttal to the Acting Chief, NGB. He mentioned the
same concerns outlined above, plus he stated that the downsizing did not apply to his
Career Management Field (CMF) of 00E, Recruiting/Retention.
On 11 August 1994, the NGB replied to the applicant. It stated the Army National
Guard was required to reduce the AGR Program throughout FY 99. States were
authorized to conduct STCBs for AGR soldiers who had achieved, or would have
achieved, 20 years AFS in FY 94. That population was targeted based on their ability
to receive a retirement annuity immediately after release. The Assistant Secretary of
the Army for Manpower and Reserve Affairs fully supported that part of the drawdown
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plan. That part of the drawdown program did not require the state to target specific
CMFs nor did it require an AGR member be part of the STCB.
On 11 August 1994, the applicant filed a complaint with the NGB IG Office outlining the
above concerns, plus stating that the other E-9 who was considered by the STCB was
given another, created-just-for-him, full-time position; that his position was not
eliminated; and that an M-Day soldier who is close to his mandatory retirement age was
On 18 August 1994, the applicant wrote to the Defense Hotline outlining all of his
concerns expressed over the past few years.
On 30 September 1994, the applicant was retired, in pay grade E-9, after completing 20
years and 7 days of creditable active federal service.
On 30 April 1996, the DoD IG responded to the applicant’s allegations that his chief of
staff counseled him and he was involuntarily retired in reprisal for communicating with
an Inspector General. They found the allegations were not substantiated.
In considering the allegation of reprisal, four issues must be addressed: Did the
complainant make a disclosure protected by statute? Subsequently, was an
unfavorable personnel action taken or was a favorable action withheld following the
protected disclosure? Did the official(s) responsible for taking or withholding the
personnel action know about the protected disclosure? Does the evidence establish
that the personnel action would have been taken if the protected disclosure had not
The DoD IG found that the applicant did make two protected disclosures to an IG; that
an unfavorable personnel action was taken following the protected disclosure (the
counseling statement and the involuntary retirement recommendation); that one of the
three members of the STCB knew of the protected disclosure; but that the personnel
actions would have been taken anyway if the protected disclosure had not been made.
The DoD IG found that the chief of staff’s counseling of the applicant was not issued in
reprisal or intended to restrict him from contacting an IG. They concluded the
counseling session could be perceived as an attempt to express displeasure with the
applicant for not using the chain of command to address complaints and concerns.
The DoD IG found that the applicant and the other E-9 would have been selected for
involuntary retirement in any case because the MNARNG had to meet the requirements
of the NGB’s mandated reduction in the AGR force. One of the board members told
the IG he could not justify continuing two soldiers who were eligible for 20-year
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retirements when other soldiers not eligible for retirements would have to be eliminated
to meet the strength quota. The IG also found that the other E-9 was not placed in
another, created-just-for him position. The other soldier gave sworn testimony that,
through a lot of effort on his part, he found an advertised full-time Active Duty Special
Work (ADSW) position with an Army Reserve program and that anyone could have
competed for the position.
The NGB IG Office confirms that the MNARNG has its 20-year AFS-and-out policy still
in effect in 1998.
DISCUSSION: Considering all the evidence, allegations, and information presented by
the applicant, together with the evidence of record, applicable law and regulations, it is
The Board supports the DOD policy of unrestricted communication with Congress, the
IG’s and various Government investigators, etc, as well as the protection from reprisal
against those who make or prepare to make such communications. When such
reprisals occur, they constitute an injustice of the sort the Board was created to correct.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to
demonstrate the existence of probable error or injustice.
GRANT FORMAL HEARING
ABCMR Memorandum of
Loren G. Harrell