Free Reply to Response to Motion - District Court of Federal Claims - federal

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IN THE UNITED STATES COURTOF FEDERAL CLAIMS W]L,LIAM CLARK, A. individually and on behalf of all others similarly situated, Plaintiff, v. THE UNITED STATES, Defendant. ) ) )

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)

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) ) ) No. 00-644 (Chief Judge Damich)

)
) KOHNER DECLARATION BY DANIEL J.

I, Daniel J. Kohner,makethe following declaration in accordancewith 28 U.S.C. § 1746. I amawarethat this declaration will be used in the UnitedStates Court of Federal Claims, and that this declaration is the legal equivalentto a statementunderoath. 1. I amthe Director, Manpower Programs,in the Office of the Assistant Secretary of

Defense for Reserve Affairs - (OASD/RA). office is in the Pentagon, Washington,DC. Our ama federal civil service employeeat the grade of GS-15, step 7. OASD/RA overall DoD has oversight responsibility for all matters pertaining to the reserve components, include the Army to and Air National Guards and the National Guard Bureau. I have been in the Manpower Directorate for nine years (April, 1995- present), and assumed Director position about four the years ago (June, 2000). The Director of Manpower Programsworks directly for the Deputy Assistant Secretary of Defense for Resen, e Affairs (Manpower Personnel) - (DASD(M&P)). and 2. The Manpower Programs Directorate of OASD/RA responsible for establishing DoD is

policy and setting the requirements for categorizing and recording all reserve component (RC) personnel, and the training requirementsfor those categories, in accordancewith Sections 10141 through 10154, and 12774of Title 10, U.S. Code, and Title 32, U.S. Code. The training 1

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categories and requirements apply to all members the reserve components,to include of members the ArmyNational Guard of the United States (ARNGUS) the Air National of and Guardof the United States (ANGUS) while in their status as members the Army of National Guard (ARNG) Air National Guard (ANG),respectively. and These OASD/RA policies

binding on each service secretary as well as on the Chief, National GuardBureau. 3. As the Director, Manpower Programs for OASD/RA, am responsible for: I l) Planning, formulating and developing policies and programs dealing with Reserve

componentmanpower.Myoffice also develops Defense Guidance, Program Objective Memoranda Instructions, and Defense Manpower Requirements Report changes to properly

reflect, justify, and validate such policies and programs; 2) Identifying and defining major DoDplanning and management problem areas.

Myoffice workswith the four Service and seven RCstaffs to review, analyze and interpret RC manpower programissues. I meet personally with senior officials in the Services, Defense Agenciesand other appropriate agencies to affect resolution of problemareas. I also oversee independentcontract studies of majorpolicy areas designed to provide alternative approachesto manpower management. 3) Coordinating DoDpolicies, procedures and planning and programming guidance.

I serve as the primary liaison betweenthe OASD(RA), Services and the RCsin those areas the for whichthe incumbenthas oversight responsibility. I amresponsible for developing the RC personnel policy guidance issued by the UnderSecretary of Defense for Personnel and Readiness to support each specific ContingencyOperation; 4) Preparing and consolidating data, text and supporting material for the Annual

Defense Report, Manpower Requirements Report, congressional testimony and subsequent

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congressional questions pertaining to the RCmanpower programs; 5) Developingan annual profile of RCusage and the support provided to the active

forces and combatant commanders.Myoffice also obtains detailed data, by componentand by type of support, from each of the seven RCs.Weassess the attrition and other impacts on the RCsassociated with providing operational support to the active force; 6) Reviewing, analyzing and interpreting RCmanpower presented by the Services as

in the Program Objective Memoranda Budget Submissions. Myoffice introduces major RC and manpower issues into the DoD Program and Budget Reviewprocess. Wealso prepare issue and programbudget decision papers for decision by the Defense ResourceBoard and the Secretary of Defense; 7) Preparing legislative amendments federal statutes, and DoD to policy directives

and implementinginstructions in support of RCmanpower requirements and programs. 8) Monitoring execution of RCmanpower programs, to insure compliance with

DepartmentalGuidance,Directives and Instructions; 9) Preparing press releases and public statements and speeches as required to further

clarify and support RCmanpower programs in support of assigned DoDmissions; 10) Advising the DASD(M&P) all aspects of RC manpowerprogram requirements on and objectives. Myoffice represents the OASD(RA) meetings within the Departmentand at with other governmentalagencies. Weare also responsible for explaining and advocating the policy determinations of the ASD~A), for keeping the senior OASD(RA) and leadership informedas to significant developments potential problemareas. and 4. As specified in paragraphs1, 3, 7, and 8 of the above-prescribedduties, DoD policy

development,coordination, and publication are critical elements of th£ OASD/RA mission. In

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this regard, OASD/RA Manpower Programs has proponency- or staff responsibility - for 12 Department DefenseDirectives and Instructions. Specifically, they are: of 1) 2) DoD Directive 1200.7, Screening the Read,/Reserve; DoDDirective 1205.5, Transfer of MembersBetweenReserve and Regular Components the Military Services; of DoDDirective 1205.18, Full-Time Support to the Reserve Components; DoDDirective 1215.6, UniformReserve, Training and Retirement Categories; DoDDirective 1215.13, Reserve Component Member Participation DoDInstruction 1215.18, Reserve Component Member Participation Requirements; DoDInstruction 1215.19, Uniform Reserve. Training and Retirement Category Administration; DoDDirective 1235.9, Management Mobilization of the Standby Reserve; and DoDDirective 1235.11, Management Individual Mobilization Augmentees of Policy;

3) 4) 5) 6)

7)

8) 9)

10)

DoDDirective 1235.13, Management the Individual ReadyReserve (ZRR) and of Inactive National Guard (DIG);

11) . DoDInstruction 1235.14, Administration and Management the Individual of Read Reserve (IRR) and Inactive National Guard (DIG); 2 12) DoD Directive 1352.1, Mana,,ementand Mobilization of Regular and Reserve Retired Military Members.

I amvery familiar with these regulations becauseI have written or revised most of these policy documents. 5. By statute and regulation, each member the Selected Reserve ("SELRES") the of of

ReadyReservesubject to a statutory or contractual service obligation, whichincludes members of the Armyand Air National Guards, must meet minimum annual training participation 4

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requirements. Throughthe above listed directives and regulations, the DoD implementsthe training authorities, requirements, and parameters for the RCsand the ARNG/ANG are set that forth in Title 10 and Title 32 of the U.S. Code, respectively. Specifically, 10 U.S.C. §§ 10143 and 10147establish the training requirements for all members the ReadyReserve, which of includes all membersof the ARNGUS the ANGUS. training requirements for the and The ARNGUS/ANGUS is performed in their status as membersof the ARNG/ANG, are and governed by 32 U.S.C. §§ 502-505. 6. All required training is conductedin one of three statuses: active duty (as defined in 10

U. S. C. § 101(d)(t)) and 32 U.S.C. § 101(12), full-time National Guardduty (as defined U.S.C. § 101(d)(5) and 32 U.S.C. § 101(19)), or inactive-duty. Active duty meansfull time in the service of the UnitedStates, and includes training duties such as a reservist's fourteen days of active duty for training required by 10 U.S.C. § 10147(a)(1), and ARNG/ANG training annual required by 32 U.S.C. § 502(a)(2). Full-time National Guardduty meanstraining or other duty, other than inactive duty, performed by a memberof the ARNGUS ANGUS the member's or in status as a member the National Guardof a State or territory, pursuant to 32 U.S.C. § 502(f). of Inactive-duty training (IDT)is required training performed other than an active duty- or fullin time National Guardduty status. Specifically, each SELRES member required to participate is in a minimum numberof scheduled training periods during each year. RCmembers other than those in the ARNG/ANG participate in at least 48 scheduled drills or training periods must during each year. 10 U.S.C. § i0147(a)(1). Membersof the ARNG/ANG assemble must drill and instruction at least forty eight times each year as providedin section 502(a)(1) of Title 32. 10 U.S.C. § 10143. However,by DoD policy that requirement is limited to members the of SELRES, excluding Individual Mobilization Augmenteeswhose IDT periods may vary from 5

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zero to forty eight. As stated in DoDI 1215.18, the purpose of these mandatoryparticipation requirementseach year is to maintainthe proficiency of the unit and the skills of the individuals. Membersof the ARNGUS/ANGUS satisfy their SELRES requirements by participating drills required by 32 U.S.C. § 502(a)(1). 7. DoD Instruction 1215.19is the principle regulation setting forth DoD policy regarding in the 48

authorized IDT. Whileeach service secretary mayprescribe additional standards for IDT, they mayonly do so within the guidelines and parameters prescribed by DoDD I215.6 and DoDI 1215.19. Individual~ attending [DTperiods are required to meet the minimum training standards established by the Secretary concerned, and mayvoluntarily attend extra I~DT periods in a nonpay status. DoDI1215.19, ~ 6.5.1. IDTis defined in DoDI1215.19, paragraph 6.2.2. as: Authorized training performed by membersof an RCnot on AD, and performedin connectionwith the prescribed activities of the RCof whichthey are a member.It consists of regularly scheduled unit training periods, additional IDTperiods, and equivalent training. The primar7purpose of IZIT is to provide individual and/or unit readiness trainin,,. IDTmaysupport ACmissions and requirements; i.e., operational support, thereby adding substanceto the Total Force. (Underline addedfor emphasis). It is the long.held understandingwithin DoD the individual services that the regularly and scheduled unit training periods and additional IDTperiods, whenordered to be performedfor compensation(as opposedto being performedin a no-pay status) encompass regular periods the of instruction or periods of appropriate duty referred to in 37 U.S.C.§ 206(a)(1). 8. As outlined in DoDI1215.18 and 1215.19, regularly scheduled unit training periods of

IDT, historically and commonly understoodas drills, are periods of actual military duty organized, authorized, and scheduledby the unit leadership to enhancethe current readiness levels of the members the unit. With regard to the ARNG/ANG, and a regularly scheduled unit

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training period is the assemblyfor drill and instruction required by 32 U.S.C. {} 502(a)(1), must therefore meet the additional requirements set forth in section 502 and implementing regulations. 9. Additional IDTperiods are specifically defined in DoDI1215.19: Additional training periods (ATPs)for units, components units, of and individuals are for accomplishing additional required training, as defined by post-mobilization mission requirements. The number those training periods shall not exceed 30 each fiscal of year (FY) for any member. Additionalflying and flight training periods (A_V-TPs) are authorized for primary aircrew members conducting aircrew for training and combatcrewqualification training to attain and maintain aircrew flying proficiency and sustain required readiness. These AFTPs shall not be in addition to the ATPsin paragraph 6.2.2.6.3.1., above. Thenumber these training periods shall not of exceed 48 each FYfor any aircrew member,unless specifically authorized by the Secretary concerned. Readiness management periods (RMPs)are used to support the following functions in preparing units for training: the ongoing day-to-day operation of the unit, accomplishingunit administration, training preparation, support activities, and maintenance functions. The numberof RMPs shall not exceed 30 each FYfor any member.Those training periods shall be used only wheresufficient full-time support (FI'S) personnel are not available to accomplishthose duties. TheseRM]Ps shall not be performed on the sameday another training period (IDT, ATP,or AFTP)is being performed and not more than one RMP shall be performedby an individual in 1 calendar day. As with regularly scheduled unit training periods, ATPsare authorized for the purpose of establishing and maintainingcurrent unit and individual readiness. 10. Equivalent Training is another subcategory of 1DT.It is well and long understood in the

DoD the individual services that the term "equivalent training" refers to the "equivalent and training, instruction, duty, or appropriate duties," referred to in 37 U.S.C.§ 206(a)(2). While

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that section grants the service secretaries the discretion and flexibility to authorize payment for II)T performed lieu of a regularly scheduledperiod of instruction or appropriateduty, it is not, in nor has it ever been interpreted to be, an independenttraining authority. It has been understood, through longstanding practice, as purely a compensation provision; the authority to require any type of IDThas been exercised exclusively from provisions in Titles 10 and 32 as described above. Equivalent training is exclusively periods of 1DTperformedinstead of regularly scheduled EDT.DoDI1215.18, para. E4.3.1; DoDI1215.19, para. E2.1.4.0 Equivalent training is training that is equal in nature and duration to the training conductedduring those periods of IDTfor whichit is substituted, and like all IDT, it mustbe organized, approved,and scheduled in advanceby the unit leadership to enhancethe readiness levels of the unit. 11. Inactive-duty training and Funeral HonorsDuty, the only actual military duties for which Confess has authorized compensationin 37 U.S.C. § 206 and for which it appropriates federal funds to the DoDannually in accordance with DoDbudgetary programming,does not include the completion of correspondencecourses. Correspondence courses are self-paced, professional developmentopportunities, performedat a time and place of the individuals choosing. Such courses simply do not meet the minimum requirements to qualify as IDTas established in the applicable DoD service specific regulations described herein. For example,to qualify as and IDT, the training period must be at least four hours in duration, it must be pre-approvedby competentmilitary authority, be on proper orders or a unit training schedule, and must be conducted in uniform. Failure to complete correspondencecourses could not be considered as an unexcused absencefrom drill, thus subjecting the soldier to the sanctions for unsatisfactory participation in SELRES training requirements, such as involuntary activation for two-years, forty-five days of involuntary ADT, separation from the service. Evenif the erroneous or 8

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perception were madethat correspondence course study was in some wayequivalent to IDT, there wouldneed to be documentationthat the correspondence course was at a minimum preapproved, conductedin four-hour sessions, and while in uniform, or it wouldbe noncompensable. Further, with regard to the ARNG/ANG, performance of correspondence the courses wouldhave to qualify as a unit "assembly" set forth in 32 U.S.C. § 502(a)(1) as implementingregulations. Correspondence courses are performedvoluntarily while in a civilian status and therefore have never been considered duty for whichcompensation authorized. is 12. It is the DoD's position that all of the duty categories described aboveare inclusive of enhancement through readiness training, but exclusive of non-resident, non-goupstructured, professional development training, performedwithout real-time interaction betweenthe servicememberand the service, which includes correspondence courses. An exampledepicting the difference is that DoD 1215.19specifically prohibits the conductof IDTin a designated I imminentdanger area, but correspondencecourse study is not specifically prohibited. This is so because the conduct of ]19T is fundamentallydifferent in nature, morestructured and more formal, than correspondencecourse study. Additionally, correspondencecourse study is performedby a member without any specific guidelines or parameters on daily or session time periods, as opposedto IDTdaily and session periods, which are prescribed both in law and DoD policy. 13. Accordingly, the intent of DoD policy has historically been, and continues to be, that correspondence course study is separate and distinct from, and does not qualify as IDT, to include equivalent training, since there is no military command control over the time used to or perform correspondence course study. Performanceof correspondence courses is voluntary training, performedat the individual's ownpace, for which compensation,other than retirement 9

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and promotionpoints, has never been authorized. I haveread the foregoing10 pagedeclaration and I certify underpenalty of perjury that it is true and correct.

Daniel J. Ko~nner Director, Manpower Programs OASD/RA Executedthis 26th day of April, 2004.

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IN THE LrNITED STATES COURTOF FEDERALCLAIMS WILLIAM CLARK,individually A. and on behalf of all others similarly situated, Plaintiff, No. 00-644 (Chief Judge Damich) THE UN1TEDSTATES, Defendant. DECLARATION BY COLONEL ERNEST C. AUDINO I, Colonel Ernest C. Audino, makethe following declaration in accordance with 28 U.S.C. {} 1746. I amawarethat this declaration will be used in the UnitedStates Court of Federal Claims, and that this declaration is the legal equivalent to a statementunderoath. 1. I am the Chief of the National Guard Bureau Training Division (NGB-ART). the As

Chief, I amresponsible for the responsibilities of mydivision, whichare the following: a. Planning, programming, budgeting, and executing resources required for training ArmyNational Guardsoldiers; b. c. Training policy formulation and implementation; and Planning, programming,budgeting and executing the ArmyNational Guard schools program.

2.

The Army National Guard("ARNG"), both its capacity as the organized militia of the in and a_ a reserve component the United States Army Army of ~he

several states and territories,

National Guardof the UnitedStates ("ARNGUS")), an integral part of the first line of defense is of the United States. The mission of the ARNG to provide units organized, equipped, and is

1

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trained to fight and win in time of war or national emergency support of the Army's plans, in war and to be prepared for mobilizationat all times. All ARNG training is in support of this federal mission. 3. Thestatutory authority for training the ARNG contained in Title 32 of the U.S. Code, is

and is governed by National GuardRegulation (AR)("NGR") 350-1, Trainintz: Arm~,National GuardTralninz. I can state unequivocally that the National GuardBureau ("NGB") does not consider the pay and compensation provisions of Title 37 of the U.S. Codeas an authority to require or conduct ARNG ARNGUS or training of any kind. All ARNG training duty must be pre-approved by command authority and performedpursuant to validly issued orders or training schedules. In my 14 years of service in the ARNG/ARNGUS, never seen any authority I have ever cited on orders or training schedulesother than the applicable provisions of Title 32. For this reason, the only three military statuses recognized for members the ARNG/ARNGUS of are Title 10, Title 32, and state duty, commonly referred to as state active duty ("SAD").Title 10 duty training or other duties performedin federal service under the command control of the and President and the Army leadership. Title 32 training is federal training performed a state status in under the command control of each state's governor, in accordancewith federal standards. and SAD duties performed a pure state status for state purposesand does not satisfy any of the are in training requirements placed on membersof the ARNG/ARNGUS by Title 10 and Title 32. 4. Withregard to inactive-duty training ("IZ)T") of the ARNG, only training authority the

32 U.S.C. 502(a)(1). Although32 U.S.C. 502(f) allows for the performanceof training or duty in addition to the drills required by section 502(a)(1), this authority is not used to authorize periods of IDT. It is only used as an authority for full time National Guardduty ("FTNGD") and other duties specifically authorized by law. Section 502(f) is used as an authorization for Title

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Active Guard and Reserve ("AGR")duty as set forth in ArmyRegulation 135-18, ArmyNational Guard and ArmyReserve: The Active Guard Reserve (AGR)Pro,zram, (Jun. 19, 1996); counterdrag missions as specifically authorized by 32 U.S.C. 112; Innovative ReadinessTraining as specifically authorized by 10 U.S.C. 2012 and 32 U.S.C. 508; and Weapons MassDestruction of ("WlVlD")/CivilSupport Teams("CST")operations as specifically authorized by 10 U.S.C. i2301(c). Governing NGB Armyregulations do not authorized performance of IDT periods and based on section 502(f). 5. All required ARNG training is conductedin one of three statuses: active duty (as defined

in 32 USC 10i(12)), FTNGD defined in 32 U.S.C. 101(19)), or IDTin a Title 32 status. (as regard to I]3T, the authorized categories - regularly scheduledIDT, additional IDT, and equivalent training, are set forth in NGR 350-1, which conformsto applicable DoD directives and instructions and Army policy. All authorized periods oflDT share common features/criteria: they

must be pre-approved by the command, documented a unit training schedule or specific orders, on be performedin uniformat the designated place of duty, be conductedunder the supervision of the command, be performedwithin the time periods specified in NGR and 350-1. The specific criteria that must be met before any period of I]3T maybe credit for any purpose are set forth in NGR 350-1. 6. Withinthe NGB, is understoodthat the regularly scheduledunit training periods and it

additional IDTperiods are assemblies for drill and instruction required by 32 U.S.C. 502(a)(1), and whenordered to be performed for compensation(as opposed to being performed in a no-pay status) and encompass regular periods of instruction or periods of appropriate duty referred to the in 37 U.S.C. 206(a)(1). 7. Equivalent Training is another subcategoryof 1DT."Equivalent training" refers to the 3

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"equivalent training, instruction, duty, or appropriate duties," referred to in 37 U.S.C. 206(a)(2). Equivalent training is exclusively periods of IDTperformedinstead of regularly scheduled IDT. Equivalenttraining is training that is equal in nature and duration to the training conducted during those periods of IDTfor whichit is substituted, and like all IDT,it must be organized, approved, and scheduledin advanceby the unit leadership to enhancethe readiness levels of the unit. 8. Unlike IZ)T, correspondencecourses are self-paced, unsupervised, professional

developmentcourses. Noone is or can be forced to enroll in correspondencecourses. The impact of not taking correspondencecourses is possible decreased competitivenesswith a soldier's peers, and in the case of those courses that are linked to promotion, such as the Basic Noncommissioned Officer Course ("BNCOC"), possible ineligibility for promotion. However,promotion, like

service in the ARNG, voluntary with the soldier; no enlisted soldier is required to be promoted is to remain in the service of the ARNG ARNGUS. or Furthermore, no soldier can be ordered to attend BNCOC residence; he or she cannot be ordered to participate by correspondence. in Correspondence courses, by their very nature, canno~qualify as a regularly scheduledUnit Training Assembly ("IYFA")(regularly scheduled IDT), additional IDT, or equivalent training set forth in NGR 350-1. Anyorder to complete correspondence courses as a period of I~DTwould be without authority. Correspondence course workis done while in a ci'/ilian status, is not 32 U.S.C. 502(a)(I) training, and therefore is not considered by the NGB duty or training as which compensationis authorized.

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I have read the foregoing ~ page declaration and I certify under pen~

f perjurythat it is true

~
COL, NGB Chief, Training Division Executedthis 23rd day of April, 2004.

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