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training is ~unit based," that is conducted pursuant to DODD 1215.6; DODD 1215.13; DODI 1215.19; and, NGR(AR) 350-1. Other training, if completedthrough correspondencecourses, is voluntary and completed as a member the ARNGUS as a civilian. of or 69. Correspondenceinstruction completed by Plaintiffs serves to achieve METL proficiency by developingmembers' leadership capabilities and by qualifying themin their military specialities. RESPONSE: Defendant disagrees. Defendant fi.~rther avers that ARNG trmmn~~s umt

based," that is conducted pursuant to DODD 1215.6; DODD 1215.13; DODI 1215.19; and, NGR(AR) 350-1. Other training, if completedthrough correspondence courses, is completed a voluntarystatus. 70. Failure to completecorrespondencecourses could result in administrative sanctions, including involuntary separation, demotion,restriction of promotable status, and denial or removal from position. RESPONSE: Defendant disagrees. The statements contained in paragraph 70 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers that while defendant agrees that in someinstances correspondence courses are a qualification for advancement, soldier whofails to take or completeone of these pre-qualifying courses does any not face any adverse action. Se_~eNGR 600-200, '~I 11-36b(1)(member decline consideration "may for promotionwithout penalty."). Defendant further avers that declining consideration for promotionis only "a declination of consideration for promotion,assignmentto a higher graded position, and NCOES training." Id. (emphasisadded). Defendantalso avers that unlike the soldier whofails to attend or completecommand sponsoredor ordered training, the soldier who 31

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fails to completequalifying correspondence courses does not face the statutory and regulatory sanctions for failure to satisfactorily performmandatory training, or disciplinary action under the Unifoma Codeof Military Justice. 10 U.S.C. § 10148(involuntary activation for 45 days); U.S.C. § 12303(involuntary activation for 24 months); Army Reg. 135-91, Chpt. 6 (providing for discharge, transfer to the Individual ReadyReserve, and gade reduction); DA Kohner 640 Decl. '~l 1 I. Theonly consequence individual faces for not completing an these self-paced progamsof study is self-imposed - the soldier maynot get promotedbecause unlike weekend drill or active duty training, no statute or regulation requires that a soldier seek promotion or complete self-development training in the Non-Commissioned Officer Education System. Defendantfurther avers that ARNG enlisted soldiers are not subject to an "up or out" system similar to the active force. NGR 600-200, ¶ 11-36b(1). Finally, Defendantavers that ARNG members mayrequest waiver of any correspondence course qualifying standard. NGR 600-200, ¶ 11-31. 71. Commanders faced with immense are pressure to have their troops trained and qualified for duty. RESPONSE: Defendant disagees. The statements contained in paragaph 71 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendantavers however that all leaders strive to have"their troops trained and qualified for duty." 72. PlaintiffBrigadier General Johnson instructed members complete training to requirements through correspondence courses. RESPONSE: Defendant agees that Brigadier General Johnson instructed membersto complete training requirements through correspondencecourses. Defendantavers that of BG 32

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Jotmsondid instruct a soldier to "completetraining requirements through correspondence courses," to be compensable, the members must have completed the correspondence courses while serving on ADT, or FTNGD IDT because the Secretary has prescribed only three types of training duty for the ARNG: ADT,2) IDT, and 3) FTNGD. 1) Sere DODD 1215.6; DODD 1215.13; DODI 1215.19; and, NGR(AR) I. Furtllermore, to qualify as equivalent training, 350the correspondence courses that BGJohnson "instructed members complete" must have been: to (1) similar in nature and quality to the training requirementsthey missedat weekend drill; (2) performedin uniform; (3) performed~vithin sixty calendar days after the missed period instruction; and, (4) at least equal in duration to that whichwasmissed. Se._~eNGR(AR) 350-1 2-1 d(7)(a)-(f). Defendantfurther avers that if the members completedcorrespondencecourses pursuant to BG Jotmson'sinstructions, and they met the standards prescribed at paragraph21 d(7)(a)-(f), that unless specifically approved the National GuardBureau,they could by performthis training if the combined total of regular periods of instruction or appropriate duty and periods of equivalent training exceededforty-eight UTAs.Id.~ 2-1a(1), (3). Defendant avers, that if Brigadier General Johnsoninstructed members completetraining requirements to tl~rough correspondencecourses as IDT, BGJolmsonwas required to issue competentwritten orders or letters of authority in advanceof training. Id. ¶ 2-1c; Letter to LieutenantWilliamE. Archer. Jr_~., B-165712,1969Comp.Gen. WL 3071 (1969)(equivalent training 450 compensable the absence of authorization orders). Defendantavers if any of the requirements in set forth abovewere not met, if plaintiffs did completecorrespondence courses pursuant to BG Jolmson'sinstructions, they did so voluntarily in a non-paystatus pursuant to 32 U.S.C. § 502(f)(2)or as a civilian. 33

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73. Several plaintiffs received orders to completespecific correspondence courses. RESPONSE: Defendantdoes not disagree that several plaintiffs allege they received orders to completespecific correspondence courses. Defendant avers that if plaintiffs did receive orders to "complete specific correspondencecourses," to be compensable,the members must have completed the correspondence courses while serving on ADT,IDT or FTNGD because the Secretary has prescribed only three types of training duty for the ARNG: ADT, IDT, and 1) 2) FTNGD.See DODD 1215.6; DODD 1215.13; DODI1215.19; and, NGR(AR) 350-1. Furthermore,to qualify as equivalent training, the correspondence courses plaintiffs allege to have been ordered to completemust have been: (1) similar in nature and quality to the training requirements they missed at weekend drill; (2) performedin unifoma; (3) performedwithin sixty calendardays after the missedperiod of instruction; and, (4) at least equal in duration that whichwasmissed. See NGR(AR) 350-i 'II 2-1d(7)(a)-(f). Defendantfurther avers that members completedcorrespondencecourses as they allege, and they met the standards prescribed at paragraph2-1 d(7)(a)-(f), that unless specifically approvedby the National GuardBureau, could not completethis workif their combined total of regular periods of instraction or appropriate duty and periods of equivalent training exceeded forty-eight UTAs. '~I 2-1a(1), (3). Id. Defendantalso avers, that if plaintiffs were ordered to completecorrespondence courses, the orderedwererequired to be issued in writing in advmace training. Id. 'If 2-1c; Letter to of Lieutenant William E. Archer, Jr., B-165712,1969 Comp.Gen. WL 3071 (1969). 450 Defendant avers if any of the requirements forth abovewere not met, if plaintiffs did set completecorrespondence courses pursuant to alleged orders, they did so voluntarily in a non-pay status pursuantto 32 U.S.C.§ 502(f)(2) or as a civilian. 34

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74. The Secretaries have authorized commanders "order" members the National to of Guardto complete"supplemental training," which includes correspondencecourses within the AmayCorrespondence Course Program. RESPONSE: Defendant disagrees. The statements contained in paragraph 74 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers tbat the reference cited by plaintiffs, paragraph 1-2 of NGR 350-1, states "Commanders authorized to are

issue orders for Army National Guardmembers pursue these training programsin either a pay to or nonpay duty status." Additionally, NGR (AR) 350-1 (30 NOV was superseded by 83) 350-1, in June 1991. Pursuant to 32 U.S.C. § 502f(2) a commander only order a member may the National Guardto performtraining in addition to that in 502(a) in a non-paystatus with the member's consent. Thus, defendant avers that the plaintiffs consentedto performingthis additional training in a non-paystatus. Defendantfurther avers that the supersedingand current regulation, NGR (AR)350-1 of June 1991, has no such referenced language. Defendant also avers that "supplementaltraining" is not an authorized training status for members the ARNG. of The only authorized training statuses are ADT,IDTmadFTNGD prescribed in DODD as 1215.6; DODD 1215.13; DODI1215.19; and, NGR(AR) 350-1. 75. Orders to completecorrespondencecourses can be issued orally and there is no requirement that orders be written to havelegal effect. RESPONSE: Defendant disagrees. The statements contained in paragraph 75 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendantagrees that orders can be given orally, however,members have no obligation to follow instructions issued in a military status while the member in a civilian status, whichdefendantavers is the status the was 35

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member agreed to complete correspondencecourses without pay. Defendantfurther avers that the Secretary has prescribed that advancedwritten orders mnst be issued for members conduct to equivalent training as IDT. NGR(AR) 350-1, ¶ 2-1c; Letter to Lieutenant WilliamE. Archer. Jr., B-165712, 1969 Comp.Gen. WL 450 3071 (1969). 76. Commanders inherent authority to order correspondence courses based on the have Secretaries' directives that commanders facilitate the specialty qualification and leader development members their units. of in RESPONSE: Defendant does not disagree that commmaders order that may correspondence courses be completed training if performed an prescribedtraining status, i.e__~. as in ADT, IDT, or FTNGD. Defendantavers that the Secretary has prescribed that written orders must be issued for members conduct equivalent training as IDT. Se_~eNGR(AR) to 350-1, ¶ 2-Ic; 2-1d(2); DoDI1215.19, ¶ 6.2.2.1; _See also National GuardRegulation 37-t04-3, Financi Administration: Military Pay AndAllowancesPolic7 AndProcedures - ArmyNational Guard, 24 Oct. 2003('~GR37-104-3"), ¶¶ 1-4, 1-8, 3-1, 3-2. Defendantfurther avers that to qualify equivalent training, if the commander orders that correspondencecourses be completed, the courses must be: (1) performedin uniform; (3) perfumaedwithin sixty calendar days after missedperiodof instruction; and, (4) at least equal in duration to that whichwasmissed.Se___.~e NGR(AR) 350-1 '~I 2-1d(7)(a)-(t)

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77. Air National Gnard noncommissioned officers must as mandatoryrequirements attain and maintain a skill level commensurate their rank, maintain a high degee of with proficiency in their awarded career field specialty, and secure and promoteprofessional military education (PME) for themselves and subordinates. RESPONSE: Defendant does not disagee. 78. Air Force Instraction 36-2618specifies that failure to complywith mandatory training requirementsconstitutes a violation of Article 92 of the Uniform Codeof Military Justice. RESPONSE: Defendant disa~ees. The statements contained in paragraph 78 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers that, pursuant to I0 U.S.C. § 802, the UniformCodeof Military Justice does not apply to National Guard members unless ill a federal status at the time of the offense andat trial. Se__~e U.S.C. 10 § 802(a)(3). Defendant further avers that source plaintiffs cite for support for the statement contained in paragaph78, Air Force Instruction 36-2618, TheEnlisted Force Structure, April 1, 1999("AFI 36-2618(1999 version)"), does not support the statement contained in paragaph AF136-2618 does not prescribe training. AF136-2618 also states that only paragraphs 3.1.3 and 4.1 are punitive, and paragraphs3.1.3, 4-1, 4.1.2 and 4.1.3 do not discuss "mandatory training," let alone specify "that failure to comply with mandatory training requirementsconstitutes a violation of Article 92 of the Uniform Codeof Military Justice." 79. Failure to completetraining for leadership and task-based skill required to performa guard member's function wouldconstitute a failure to obey the mandatoryprovisions of AFI 362618. 37

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RESPONSE: Defendant disagrees. The statements contained in paragraph 79 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendantavers that the reference cited by plaintiffs, AFI36-2618, does not apply to Guardmembers unless the member

is on active status. Defendant further avers that it is well settled law that the members the of ANG subject to the UniformCodeof Military J~ustice only whenin Federal service. 10 are U.S.C.§ 802(a)(3). Defendant further avers that source plaintiffs cite for support for statement contained in paragraph79, Air Force Instruction 36-2618, The Enlisted Force Structure, April 1, 1999("AF136-2618 (1999 version)"), does not support the statement contained in paragraph 79. AFI 36-2618does not prescribe training. AF136-2618 states also that only paragraphs3.1.3 and 4.1 are punitive, and paragraphs3.1.3, 4-1, 4.1.2 and 4.1.3 do not state that "[f]ailure to completetraining for leadership and task-basedskill[s] required to perform a guard member's function" constitutes a violation of Article 92 of the Uniform Codeof Military Justice." 80. Guardmembers be criminally sanctioned if they disobey a regulation or a lawful may order to take a correspondence course. RESPONSE: Defendant agrees that members of the ARNG ANG and could possibly face criminal sanction pursuantto their state's military justice codes for violating a lawful order. Defendantavers that the punitive sections only apply to Guardmembers a military duty status, in and that correspondence course world is completedin a civilian status. Defendantfurther avers that ARNG ANG and members not subject to criminal sanction pursuant to the Federal are Uniform Codeof Military Justice becauseit does not apply to plaintiffs unless they are in Federal service at both the time of the offense and at the time of the trial. U.S.v. Wilson,53 M.J. 327, 38

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328 (CAAF 2000), 10 U.S.C. § 802(a)(3). Defendantfurther avers that there is no record members the ARNG ANG of or being prosecuted for failing to complete correspondence courses. 81. Army Guardand Air Guardofficers face an "up or out" policy, in whichthey will be involuntarily separated fromservice if they are not selected for promotion within a specified time period. RESPONSE: Defendant disagrees. The statements contained in paragraph 81 constitute plaintiffs' argument legal conclusions, not statements of fact. Despitethe failure of and promotion,involuntary separation is not required. National Guardofficers maybe selectively retained on the ReserveActive Status List pursuant to 10 U.S.C. 14701. 82. Guardofficers will not be selected for promotion they fail to completethe requisite if professional military education courses for the next higher ra~, including correspondence courses. RESPONSE: Defendant disagrees. The statements contained in paragraph 82 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers that one of the document plaintiffs cite for support of the statements in paragraph82, Amay Regulation135155, Promotionof Commissioned Officers and Warrant Officers Other ThenGeneral Officers, 13 July 2004 ("AR 135-155"); applies to the ARNGUS not the ARNG. and Defendant further avers that paragraph 5.a.10 of National GuardRegulation 635-100, Termination of Appointment and Withdrawal Federal Recognition, 15 July 1983 ("NGR of 635-100"), is inapplicable plaintiffs becauseparagraph5.a.10 only applies if the non-selection for promotion in a is members ARNGUS status, i.e. consistent with AR135-155. Similarly, paragraph 5.a.20 of NGR 635-100is inapplicable because it refers to 2"~ Lieutenant branch qualifying courses, whichmust 39

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be completedon ADT.Defendantfurther avers that paragraph 2.5.3 of Air National Guard Instruction 36-2504, Federal Reco~ition Of Promotion In The Air National Guard (ANG) And As A reserve Of The Air Force BelowThe Grade Of General Office~, July 28, 2004 ("ANGI 362504"), does not support the statement contained in paragaph82. 83. Members enlist for a term in the guard and uponexpiration of the terua, the member mustapply for an extension(for up to four years) or for re-enlistment (for up to six years). RESPONSE: Defendant disagees. The statements contained in para~aph 83 constitute plaintiffs' argument legal conclusions, not statements of fact. Defendant and avers that service in the United States military in any component voluntary and pursuant to statute. Defendant is further avers that enlistment and reenlistment terms vary. 84. Themember's commm~der the authority to approve the reenlistment request or the has member will be separated from the National Guard. RESPONSE: Defendant does not disagee. Defendant avers that only soldiers and airman of high moral character, personal competence,and demonstratedadaptability to the requirementsof the professional soldier's moral code maybe reenlisted, immediately reenlisted or extended. Defendant further avers that ifa soldier or airmandoes not volunteer to reenlist or extend his or her enlistment, that soldier or aimaan will be dischargedat the expiration of his or her term of service ("ETS"). 85. If the member failed to completetraining necessary for promotionand skill has qualification, the commander separate the member denying the extension or re-enlistment may by application.

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RESPONSE: Defendant disagrees. The statements contained in paragraph 85 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendantavers that ira soldier or airmandoes not volunteer to reenlist or extend, or is denied reenlistment or extension for appropriate reasons, the member discharged at ETS.Defendantalso avers that the is regulatory source that plaintiffs cite for support for the statementcontainedin paragraph85, National Guard Regulation 600-200, Personnel: General Enlisted Personnel Management, 1 March1997 ("NGR 600-200"), does not support the statement contained in paragraph 85. Paragraph7-22 of NGR 600-200sets forth guidance for a commander bar a solder for to reenlistment, and does not discuss separation. Defendant avers that a bar to reenlistment is a non-punitiveprobationarydevice intended to serve notice that a soldier is not a candidate for reenlistment, immediatereenlistment or extension and maybe discharged if the circumstances that led to the bar are not overcome.See NGR 600-200~f 7-21. A bar to reenlistment a motivational tool to improvea soldier's performance. 86. Both enlisted and officer Guardmembers be involuntarily separated under may Selective or Qualitative Retention Boardprocedures for failing to completecorrespondence courses that are prerequisites for promotion the next higher grade. to RESPONSE: Defendant disagrees. The statements contained in paragraph 86 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers that both enlisted and officer Guardmembers be separated for a variety of reasons that a service may member or does not do in his civilim~ and military status prior to and after reaching 20 years does of service. Defendant further avers that the failure "to completecorrespondence courses that are

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prerequisites for promotion the next higher grade" is not specified as a reason for separation in to any of the sources plaintiffs cite for support for the statementscontainedin Paragraph 86. 87. Annual selective retention boardsin each state and territory to [sic] consider whether enlisted and officer members the National Guardwith over 20 years of serve should be of retained in the Guard. RESPONSE: Defendant does not disagree. The defendant avers that the Governor of each state is the commander his or her state militia, and the Governor establish rules that of can governthat force. 88. Guardmembers have not completed the professional military education course who required for the next higher grade face a substantial likelihood of being involuntarily discharged under the Selective or Qualitative Retention Board program. RESPONSE: Defendant disagrees. The statements contained in paragraph 88 constitute plaintiffs' argument legal conclnsions,not statementsof fact. and 89. Failure to completeprofessional education courses mayresult in a Guardmember's involuntary discharge. RESPONSE: Defendant does not disagree. Defendant avers that both enlisted and officer Guardmembers be separated for a numberof reasons that a service member may does or doesnot do in his civilian or military status. 90. Regulations establish that Guardmembers under review must be current in military educationto support being retained in the military. RESPONSE: Defendant neither agrees or disagrees with the statement contained in paragraph 90. Defendantis unawareof"[r]egulations [that] establish that Guardmembers under 42

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reviewmust be current in military education to support being retained in the military" because defendant does not know what plaintiffs are referring to whenplaintiffs use the words"under review." Defendantavers that in appendixC to National GuardRegulation 635-102, Officers and WarrantOfficers Selective Retention, 1July 1998("NGR 635-102"), several factors for ARNG officers and warrant officers are set forth that selective continuation boards should consider whenthe board deliberates. NGR 635-102 does not say that "Guard membersunder

review must be current in military education;" however,NGR 635-102does say that an officers evaluation reports are the single mostimportant document the board to consider. for 91. Guardmembers subject to the administrative sanction of demotionin rank for are failing to completerequired correspondencecourses. RESPONSE: Defendant disagrees. The statements contained in paragraph 91 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendantavers that Guard members receive a non-punitive administrative reduction in rank due to failure to complete may the military educationrequired of the rank. By accepting a conditional promotion,soldiers agree to the conditions of the promotionsand subsequent reduction without board action or appeal for failure to meet these conditions. See NGR (AR) 600-200, para. 11-28d (Change1). Defendant avers that the servicemember does not qualify for the conditional promotion, however,is who able to keep the extra pay received by the member the higher rank regardless of qualification. in NGR (AR) 600-200, para. 11-56e.

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92. Regulationsestablish that certain military courses are required for promotion. RESPONSE: Defendant does not disagree. Defendant avers that there are manycriteria a soldier or airmanmust satisfy to be competitivefor promotion,and military educationis one of those factors. 93. Ifa guard member receives a conditional promotionhe or she is required by regulation to complete the applicable noncommissioned officer education system course and if the Guardmember fails to completethe required course, he or she will be demoted. RESPONSE: Defendant disagrees. The statements contained in paragraph 93 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers that a soldier's conditionalpromotion void if the soldier fails to satisfy any of the conditionsof a is conditional promotion,to include any educational requirements. Defendantfurther avers that enlisted soldiers whoaccept a conditional promotiondo so voluntarily, and thus, volunteer to meet the conditions of the promotion. 94. Certain positions in the Army National Guardand Air National Guardhave course prerequisites that must be satisfied before a member qualify for the position in question or can assume command. RESPONSE: Defendant disagrees. The statements contained in paragraph 94 constitute plaintiffs' argument legal conclusions, not statements of fact. Defendant and avers that the source plaintiffs cite for support of the statement contained in paragraph94, page 17 ofDA Pam 350-58, only refers to active and Reserve component,and not the ARNG. Defendant further avers that if plaintiffs satisfied courseprerequisites to qualify for a "position in questionor assume command," they did so as members the ARNGUS in a civilian status. of or 44

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95. Guard memberswhoassume command must take Phase I of the Pre-Command course whichis only offered as a correspondencecourse. RESPONSE: Defendant disagrees. The statement contained in paragraph 95 constitutes plaintiffs' argumentand legal conclusion, not a statement of fact. Defendant avers that the source plaintiffs cite for support of the statement containedin paragraph95, does not support the statements contained in paragraph 95. Thecited messagethat discusses Phase I of the PreCommand Course is addressed to the active component, and not the ARNG. Defendant further avers that if plaintiffs completedPhase I of the Pre-Command Course, they did so as members of the ARNGUSin a civilian status. or 96. In the ArmyGuard, companygrade commanders must complete a correspondence course called the Commander's Safety course. RESPONSE: Defendant disagrees. The statement contained in paragraph 96 constitutes plaintiffs' argumentand legal conclusion, not a statement of fact. Defendant avers that the source plaintiffs cite for support of the statement containedin paragraph96, does not support the statements contained in paragraph 96. TheAugust14, 2003 messagethat discusses the Commander's Safety Course is addressed to the active component,and not the ARNG. Agree, howeverCommand not required and completionof the course in a civilian status is a is noncompensable status. Defendantfurther avers that if plaintiffs completedthe Commander's Safety Course, they did so as members the ARNGUSa civilian status. of in 97. The position of Battalion Logistics Officer in the Army Army and Guardrequires specialized training in handling hazardousmaterials that can be satisfied by completingthe HazardousMaterials Handling correspondence course. 45

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RESPONSE: Defendant disagrees. The statement contained in paragraph 97 constitutes plaintiffs' argumentand legal conclusion, not a statement of fact. Defendant avers that the soumeplaintiffs cite for support of the statement containedin paragraph97, does not support the statements contained in paragraph 97. DoDInstruction 4500.9R, Defense Transportation Regulation, that discusses transportation and handling of hazardousmaterials does not prescribe training. Defendant further avers tbat if plaintiffs completed training for the Battalion any Logistics Officer's position, they did so as members the ARNGUSa civilian status. of in 98. Guardmembers are selected to be Battalion Logistics Officers must take the who HazardousMaterials Handlingcorrespondence course or other sufficient course or will lose their position. RESPONSE: Defendant disagrees. The statement contained in paragraph 98 constitutes plaintiffs' argumentand legal conclusion, not a statement of fact. Defendant avers that if plaintiffs completed training for the Battalion Logistics Officer's position, they did so as any members the ARNGUS in a civilian status. Defendantfurther avers that John Doe4's of or declaration does not support the statement contained in paragraph 98. Defendantalso avers that John Doe4 states in his declaration that his "Battalion ExecutiveOfficer instructed [him] to take the ... Hazardous Materials Handling course in order to acquire skills necessar for the position 2 of Battalion Logistics Officer." (emphasisadded). John Doe4 does not state the training was "required" by his commander. 99. Training funds are appropriated for the National Guard. RESPONSE: Defendant does not disagree. Defendant avers that the ARNG never has requested nor received appropriations for the purposes of funding correspondencecourse work 46

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while in a civilian status. Thebudgetis to providefor pay, allowances,travel and subsistence while on specific duty, undergoing training, or while perforating drills or equivalent training, pursuant to Titles 10 or 32, U.S. Code. See DA438, ManwilerDecl. ~f 4. Defendantfurther avers that if training funds are obligated to pay members completingcorrespondence for course, the Anti-Deficiency Act, 31 U.S.C. § 1341 wouldbe violated. Likewise, if commanders ordered correspondencecourses as IDT, they have violated the Federal apportionmentstatute, 31 U.S.C. §§ 1512-1513, 1517. See also DA548-560. 100. Plaintiffs have perfomled "duty" whenthey complete required correspondence courses since regulations dictate that only "duty" status entitles a Guardmember retirement to points. RESPONSE: Defendant disagrees. The statement contained in paragraph 100 constitutes plaintiffs' argument legal conclusion, not a statement of fact. Defendant and avers that members the ARNG not earn retirement points in relation to their membership the of do in ARNG. Retirement points are awarded based upon an individuals membershipin the ARNGUS, pursuant to 10 U.S.C. § 12732.Defendantavers that the source plaintiffs cite for support of the statement contained in paragraph 100, paragraph 2-1 ofNGR (AR)350-1, also requires that order to receive compensation retirement credit for inactive duty training, the Secretary and requires "documentary evidence that the individual wasin a[n] [IDT] duty status as authorized by Federal taw or regulations. Accordingly,to protect the interests of the individual and those of the government commanders issue written orders or letters of authority governingtraining in a wilt pay or nonpayduty status in advanceof such training." NGR (AR)350-1, para. 2-1c. Defendant also avers that the plaintiffs were not performingIDT, nor were they performingmilitary duties 47

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while on written orders under letters of authority governingtraining in advanceof such training, whenthey completed correspondence courses. 101. The service secretaries have prescribed that Guardmembers call earn retirement points for performingthe duty of completingcorrespondencecourses. RESPONSE: Defendant disagrees. The statement contained in paragraph 101 constitutes plaintiffs' argument legal conclusion, not a statement of fact. Defendant and avers that members the ARNG not earn retirement points in relation to their membership the of do in ARNG. Retirement points are awarded based upon an individuals membershipin the ARNGUS, pursuant to 10 U.S.C. § 12732. Defendantavers that the governing regulation, NGR (AR)3501, requires that in order to receive compensation retirement credit for inactive duty training, and the Secretary requires "documentary evidencethat the individual wasin a[n] [IDT] duty status as authorized by Federal law or regulations. Accordingly,to protect the interests of the individual and those of the govenmaent commanders issue written orders or letters of authority will governingtraining in a pay or nonpayduty status in advanceof such training." NGR (AR)350-1, para. 2-1c. Defendantalso avers that the plaintiffs were not performingIDT, nor were they performingmilitary duties while on written orders under letters of authority governingtraining in advance of such training, whenthey completedcorrespondencecourses. 102. Pursuant to NGR 680-2, AutomatedRetirement Points Accounting System, the Secretaries grant to Guardmembers retirement point for each three correspondencecourse one credit hours satisfactorily completed. RESPONSE: Defendant disagrees. The statement contained in paragraph 102 constitutes plaintiffs' argumentaud legal conclusion, not a statement of fact. Defendantavers 48

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that National Guard members earn Federal retirement points under 10 U.S.C. 12732 because may "service in the NationalGuardshall be treated as if it were service in the reserve component, if the person concernedwaslater appointed in the National Guardof the United States, the Amay National Guardof the United States, the Air National Guardof the UnitedStates ..." Consequently, National Guardmembers only receive Federal military retirement points due can to their membership in the ARNGUS/ANGUS.

103. National Guardmembers perfomaofficial duties via "telework" while at home may and such activity is appropriate for the performance "web-based of distance and continuous learning, including educational requirementsrequired by law or regulation." RESPONSE: Defendant disagrees. The statement contained in paragraph 103 constitutes plaintiffs' argumentand legal conclusion, not a statement of fact. Defendantavers that the source plaintiffs cite for support for support of the statementscontainedin paragraph 103, Departmentof Defense Directive 1035.1, TeleworkPolicy for the Departmentof Defense, 9 Sept. 2002 ("DoDD 1035.1"), does not apply to the ARNG. Se__~eDoDD 1035.1 ']I 3.4. Defendant further avers that the states National Guardsand its military members not fall under the do Departmentof Defense until serving in their status as members the Reserve Components. of The Federal law under which the DoDD derives, Section 359 of PL 106-346, states "Each executive agencyshall establish a policy under whicheligible employees the agencymayparticipate in of telecommutingto the maximum extent possible without diminished employeeperformance. Not later than 6 months after the date of the enactmentof this Act, the Director of the Office of Persom~elManagement shall provide that the requirementsof this section are applied to 25 percent of the Federal workforce, and to an additional 25 percent of such workforceeach year 49

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thereafter." TheNational Guardof each state is not an executive agencyof the Federal Government, are its military members nor employeesof the federal workforce. Defendantalso avers that the tern1 "work-at-home"telework means"an approved arrangement wherebyan employee perfo~-nshis or her official duties in a specified workor office of his or her home that is suitable for the performanceof official Government business." See DoD TeleworkGuide, para. 2.2.1. Thefurther requirementsas stated in the DoD telework Guidedo not apply to correspondence courses completedin a civilian, non-duty status. Respectfully submitted, PETERD. I~d/ISLER Assistant Attorney General DAVID M. COHEN Director s/James M. Kinsella bv Todd M. Hu~hes JAMES M. K[NSELLA Deputy Director

OF COUNSEL: LT. COL. JOSEPH FETTERMAN MAJOR CHRIS SOUCIE MAJOR GARY CORN United States An-nyLitigation Division Arlington, VA22203-1837 LT. COL. JOSEPH WENDLBERGER United States Air Force General Litigation Division CAPTAIN CHRIS BROWN National Guard Bureau Office of Chief Counsel

s/Douglas K. Mickle DOUGLASK. MICI~E Trial Attorney National Courts CommercialLitigation Branch Civil Division United States Department Justice of Washington, D.C. 20530 Tel. (202) 353-7961 Fax (202) 353-7988

Attorneys for Defendant July 18, 2005 5O

Case 1:00-cv-00644-NBF

Document 113

Filed 07/18/2005

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CERTIFICATE OF SERVICE I herebycertify under penalty of perjury that on July 18, 2005, a copy of the foregoing "DEFENDANT'S RESPONSE TO PLAINTIFFS' PROPOSEDADDITIONALFACTS" wasfiled electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing throughthe Court's system.

s/Douglas K. Mickle Douglas K, Mickle