Free Response to Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WILLIAM CLARK,et. A. al. )

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Plaintiffs, v. THE UNITED STATES, Defendant. )

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No. 00-644 (Chief Judge Damich)

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) PROPOSED ADDITIONAL FACTS DEFENDANT'S RESPONSE TO PLAINTIFFS'

Pursuant to Rule 56(h)(2) of the Rules of the UnitedStates Court of Federal Claims, United States respectfully submitsthe followingresponseto plaintiffs proposedadditional facts. 1. TheSecretaries haveexercised their statutory authority to prescribe individual training, including correspondencecourse work, as an essential component the military's of comprehensive prodamfor training individuals and units to meet war-time mission requirements. RESPONSE: Defendant disagees. The statements contained in paragaph I constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers that the Secretary's~ regulations that prescribe training for the Army National Guard("ARNG")'are consistent with the nearly one-hundred years of legislative history that sets forth the composition, rote, and authorized training of the ARNG the nation's force structure. Defendantfurther in avers that National Guardtraining is conductedsolely pursuant to Title 32 of the U.S. Code, and ~ Throughoutthis response, the term "Secretary" is used. Depending upon the circumstances, facts and supporting documentation,"Secretary" refers to the Secretary of Defense, Secretary of the Army,Secretary of the Air Force, or any combination the three. of -' Becausethe lead plaintiff, Mr. Clark, is a member the ARNG, of references in this brief generally are to the ARNG, however discussion is of equal applicability to the plaintiffs who the are members the Air National Guard ("ANG"). of

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is governedby Dep't of Defense Directive 1215.6, UniformReserve, Training. and Retirement Categories, (Mar. 14, 1997) ("DODD 1215.6"); Dep't of Defense Directive 1215.I3, Reserve Component Member Participation Policy, (Dec. 14, 1995)("DoDD 1215.13"); Dep't of Defense Instruction 1215.19, UniformReserve. Training and Retirement Category Administration, (Dec. 12, 2000) ("DODI 1215.19"); and, National Guard Regulation (AR) 350-1, Training: Amav National GuardTraining, (Jun. 3, 1991) ("NGR(AR) 350-1"). In these regulations, the Secretary has prescribed three types of duty where ARNG soldiers mayconduct training: Active Duty ("AD"or active duty training "ADT"),Inactive Duty Training ("IDT"), and Full-Time National Guard duty ("FTNGD"). 2. TheSecretaries of the Air Force and Army have prescribed correspondencecourses as prerequisites to and as substitutes for completingrequired "in residence" training for which National Guard membersare compensated. RESPONSE: Defendant disagrees. The statements contained in paragraph 2 constitutes plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers that the document plaintiffs cite for support for the statements contained in paragraph2, Army Regulation 351-1, Schools: Individual Military Education Training, 15 October 1987 ("AR351I"), does not apply to the Secretary of the Air Force. Defendant further avers that the Secretary has prescribed only tt~ree types of training: 1) ADT, IDT, and 3) FTNGD. DODD 2) See 1215.6; DODD 1215.13; DODI 1215.19; and, NGR(AR) 350-1. Defendant also avers that completing correspondence courses is not prescribed training for ARNG soldiers in an AD,IDT, or FTNGD status.

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3. National Guardtraining involves required unit training pursuant to 32 U.S.C. 502(a), which "develops critical components combatreadiness." of RESPONSE: Defendant agrees that National Guard training involves required unit training pursuant to 32 U.S.C. 502(a). Defendantavers that the Secretary has only prescribed training pursuant to 32 U.S.C. 502(a) in DODD 1215.6; DODD 1215.13; DODI 1215.19; and, NGR(AR) 350-1. Defendantfurther avers that the sources plaintiffs cite for support for the statements contained in paragraph 3, Army Regulation 350-I, Training: An-nV Training and Education, 9 April 2003 ("AR350-1 "), and Field Manual7-0, Trainin~ The Force, October 2002, do not prescribe training. Defendantalso avers that AR350-1 does not apply to the ARNG, and FM7-0 merely establishes overarching general guidance for its members understand howthe to Army plans and executes training and develops future leaders. 4. National Guardtraining also includes required individual training pursuant to 32 U.S.C. 502(f), which"[p]roduces soldiers capable of performing[their] military occupational specialty (MOS)" other tasks. and RESPONSE: Defendant disagrees. The statements in paragraph 4 constitutes plaintiffs' argumentand legal conclusions, not statements of fact. Defendantavers that 32 U.S.C. 502(f) limits the Secretary to authorizing "full time National Guard"and "other" duty, and section 502(0 has been used as authority for the ARNG very limited circumstances to allow ARNG in members perform missions or duties other than "training" in a FTNGD to status. This duty includes counter-drug duty pursuant to 32 U.S.C. § 112(b) and weapons massdestruction civil of support teams pursumatto 10 U.S.C. § 12310(c)(1). DA645, AudinoDecl. '~] 4. Defendant

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further avers that the source plaintiffs cite for support, AR 350-1, does not prescribe training, nor does it apply to the ARNG. 5. Thethree pillars of the National Guardtraining and educationinclude collective training (unit training), individual training, and self-development training. RESPONSE-" Defendantdisagrees. The statements in paragraph 5 constitutes plaintiffs' legal conclusions, not statements of fact. Defendant further avers that the sources plaintiffcite for support for the statement contained in paragraph5, AR350-1 and FM 7-0, do not prescribe training. AR350-t does not apply to the ARNG, FM7-0 merely establishes overarching and general guidance for its members understand howthe Army to plans and executes training and developsfuture leaders. 6. The Commanding General of the U.S. ArmyTraining and Doctrine Command ("TRADOC") responsible to develop and execute "individual training to meet the Amay's is individual training goals." RESPONSE: Defendant disagrees. The statements contained in paragraph 6 constitute plaintiffs' argument legal conclusions, not statementsof fact. Defendant and further avers that the authority of the Commanding General of the TRADOC, set forth in AR350-1, does not as apply to the ARNG. 7. TRADOC designed the Total Anaay Training System ("TATS")and has has designated the "non-resident" AnaayCorrespondenceCourse Program("ACCP") an essential as component TATS of which is "required in support of workplace learning". RESPONSE: Defendantdisagrees. Defendantavers that the sources plaintiffs cite for support, Army Regulation 351-1, Schools: Individual Military Education and Training, 15

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October 1987 ("AR 351-1"), and TRADOC Regulation 350-70, Systems Approach to Training, Management. Process, and Products, 9 March 1999 ("TRADOC 350-70"), do not support Reg the statements contained in paragraph 7. Defendantfurther avers that AR351-1 has been superseded by AR350-1, and AR350-1 does not apply to the ARNG. 8. The "nonresident" training or programsare synonymous with correspondence work. RESPONSE: Defendant disagrees. The statements contained in paragraph 8 are plaintiffs legal conclusionsand not statements of fact. Defendant avers that the source plaintiffs cite for support for the statement containedin paragraph8, AR 351-1, does not support the statements contained in paragraph 8. Defendantfurther avers that AR351-1 has been superseded by AR350-1, and AR350-1 does not apply to the ARNG. 9. ThroughTATS guard members receive required individual training which provides "standard resident and nonresident (distance learning) training and education...." RESPONSE: Defendant disagrees. The statements in paragraph 9 constitutes plaintiffs' legal conclusions,not statementsof fact. Defendant avers that the source plaintiffs cite for support for the statements in paragraph9, FM 7-0, does not support the statements contained in paragraph 9. 10. The Secretary of the Army differentiated ACCP has courses taken from by active Guard membersfrom voluntary programs. RESPONSE: Defendant disagrees. The statements contained in paragraph 10 constitute plaintiffs' argument legal conclusions, not statements of fact. Defendant and avers that the source plaintiffs cite for support of the statements containedin paragraph10, AR I-1, does not 35 support the statements contained in paragraph10. Defendantfurther avers that plaintiffs have

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asserted that they were not "active Guardmembers" the purposesof this lawsuit. for Accordingly,defendantalso avers that the statements contained in paragraph10 are irrelevant. 11. Plaintiffs completedmilitary correspondence courses to satisfy on-duty National Guardtraining requirements. RESPONSE: Defendant disagrees. The statements in paragraph 11 constitutes plaintiffs' legal conclusions, not statements of fact. Defendant avers that the Secretary has only prescribed training pursuant to 32 U.S.C. 502(a) in DODD 1215.6; DODD 1215.13; DODI 1215.19; and, NGR(AR) 350-1. Defendantfurther avers that pursuant to section 37 U.S.C. § 206(b), the Secretary has prescribed strict requirements for compensating ARNG training. See NGR(AR) 350-1, Chapter 12. Regulations promulgatedbefore 37 U.S.C. § 206 was amendedprovide that the ArmyCorrespondence Course Progrmnapplies to membersof the "National Guard." RESPONSE: Defendant lacks sufficient information to agree or disagree with the statements contained in paragraph 12 because plaintiffs do not explain which time 37 U.S.C. § 206 wasamended that they are referring to in paragraph 12. Defendantdoes agree that Department of the ArmyPamphlet 351-20, Schools: AmavCorrespondence Course Progam Catalog, 28 April 2000 ("DAPAM 351-20"), applies to the Army National Guard. Defendant does not agree that Departmentof the ArmyPamphlet 350-59, Schools: ArmyCorrespondence Course Pro~amCatalog, 26 October 2001 ("DAPAM 350-59"), applies to the Amay National Guard. DAPAM specifically limited to the Amay is National Guardof the United States ("ARNGUS").Defendant avers however that both DAPAM 351-20 and DAPAM 350-59 establish that the AnaayCorrespondence CourseProgramis only available to "U.S. Active and

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Reservemilitary officers, warrant officers, and enlisted personnel..." Se__~e PAM DA 351-20, ¶ 1-6; DAPAM 350-59, ¶ 1-6. Defendantfurther avers that if plaintiffs completedcorrespondence courses pursuant to these regulations, they did so in their ARNGUS status, or as civilians. 13. The Air Force Extension Course Program(""ECP') is a mandatorytraining program. RESPONSE: Defendant disagrees. The statements in paragraph 13 constitutes plaintiffs' legal conclusions,not statementsof fact. Defendant avers that the source plaintiffs cite for support of the statements containedin paragraph13, Air Force Instruction 36-2201,Vol. 4, Air Force Training Progam. ManagingAdvanced Distributed Learning, October 23, 2002 ("AF136-2201"), does not support the statements contained in paragraph 13. Defendantfurther avers that the Secretary has only prescribed training pursuant to 32 U.S.C. 502(a) in DODD 1215.6; DODD 1215.13; DODI 1215.19; and, NGR(AR) 350-1. 14. A report entitled the "History of the ExtensionConrseInstitute" provides that since 1963 the ECPis a mandatory program. RESPONSE: Defendant disagrees. The statements in paragraph 14 constitutes plaintiffs' legal conclnsions,not statementsof fact. Defendant avers that the source plaintiffs cite for support of the statements containedin paragraph14, does not support the statements contained in paragraph14. 15. "Duty"qualification is a priority for National Guardmembers. RESPONSE: Defendant disagrees. The statements contained in paragraph 15 constitute plaintiffs' argument legal conclusions, not statements of fact. Defendant and avers that the sources plaintiff cite for support of the statements containedin paragraph15, paragraphs1-49 and 4-22 of FM7-0, do not support the statements contained in paragraph 15. The sources 7

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plaintiffs cite for support apply only to Reserve Component unit-commanders,and not members of the ARNG. 16. Advancement training can be achieved by correspondence course workand is another fomaof individual training to ensure unit readiness. RESPONSE: Defendant disagrees. The statements contained in paragraph 16 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendantavers that the sources plaintiff cites for support of the statementscontainedin paragraph16; FORSCOM/ARNG/USAR Regulation 350-2, Trainin~ Reserve ComponentTraining, 1999 ("FORSCOM 350-2") and FM7-0, do not support the statements contained Reg paragraph 16. Paragraph 1-3, ofFORSCOM 350-2 states: Reg The goal of Army training is to producetrained units capable of executing wartimeor other assigned missions; the objective of Army training is ready unit_s; the foundationof unit readiness are: Duty Military Occupational Specialty Qualified (DMOSQ) soldiers, developedleaders, and unit cohesion. Defendantavers that FORSCOM 350-2 also states that unit training is executed during IDT. Reg FORSCOM ']l']] 1-4f.(3), 4-2. Paragraph 1-24 of FM7-0 discusses why"[c]ompetent and Reg, confident leaders are a prerequisite to the successful training of ready units." Defendant further avers that the words "advancementtraining" do not appear in either FORSCOM 350-2 or Reg FM7-0. Similarly, the words "correspondence course work" do not appear in FM7-0. Defendant also avers that the words "correspondence courses" only appears once in FORSCOM Reg350-2, whenthe regulation discusses "self-developlnent." FORSCOM 350-2, '~[ 5-1 .c. Reg Noteworthy, is the fact that the words "correspondence courses" do not appear in FORSCOM 27 October

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Reg350-2's discussion on Institutional or Operational training. Se_.~e FORSCOM 350-2, ¶¶ 5Reg 1.a &5-1,b. 17. Professional military educationcourses are required fonaas of individual training. RESPONSE: Defendantdisagrees. The statement in paragraph 17 constitutes plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers that the source plaintiffs cite for support of the statements contained in paragraph17, paragraph1-29 of FM 7-0, does not support the statements contained in paragraph17. Defendantfurther avers that the Secretary has prescribed only three types of training duty for the ARNG: ADT, IDT, and 3) FTNGD. 1) 2) Se__~_e DODD 1215.6; DODD 1215.13; DODI1215.19; and, NGR(AR) 350-1. 18. Professional military education courses develop Army leaders and prepare leaders for their next assignment higher-level responsibility. and RESPONSE: Defendant agrees. 19. Individual training provided tl~rough correspondencesis necessary for Guard members be qualified within their military specialty. to RESPONSE: Defendant disagrees. The statement in paragraph 19 constitutes plaintiffs' argumentand legal conclusions, not a statement of fact. Defendantavers that there is no regulatory basis for the statements contained in paragaph19. Defendantfurther avers that members the ARNG are non-prior service enlistees receive their qualifying military of who occupational specialty ("MOS") training in an Initial Active Dutyfor Training ("IADT") status. See ArmyRegulation 135-200, Active Duty for Missions Proiects and Trainine for Reserve Component Soldiers, ("AR135-200") 1 Sep 1994 ~I 5-2; AR135-20030 JUN99, ¶l~[ 5-2, 5-3.

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20. Guardmembers must be qualified within their specialty to be deployed. RESPONSE: Defendant disagrees. The statement m paragraph ~0 constitutes plmntlffs argument legal conclusions,not statementsof facts. Plaintiffs fail to cite to any regulation or and directive to support the legal conclusionsplaintiffs assert in paragraph20 as fact. Defendant avers that membersof the ARNGUS be MOS must qualified to be deployed and mayonly be deployed while in a Federal status; however, members the ARNG not deployed. of are 21. Professional developmenteducation provided through correspondence courses gives officers indispensabletraining by providingthemwith skills necessaryto fulfill responsibilities as officers and leaders within the Guard. RESPONSE: Defendant disagrees. The statement in paragraph 21 constitutes plaintiffs' argumentand legal conclusions, not statements of facts. Defendantavers that the only members eligible to emoll in correspondence courses are "U.S. Active and Reservemilitary officers, warrant officers, and enlisted personnel..." Se_.~e DAPAM 351-20, ¶ 1-6. Defendantfurther avers that if plaintiffs completedcorrespondence courses pursuant to these regulations to acquire "sldlls necessaryto fulfill responsibilities as officers and leaders withinthe Guard,"they did so in their ARNGUS status, or as civilians. 22. Professional developmentcourses, including the Combined Amlsand Services Staff School, improve "each officer's ability to analyze and solve military problems... to interact mad coordinate as a member a staff.., of operation and procedures." RESPONSE: Defendant disagrees. The statement in paragraph 22 constitutes plaintiffs' argument legal conclusions, not statements of facts. and 10 to communicate," to understand "Army and organization,

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23. Task-based correspondence courses, such as ArmyMOS-based courses and Air Force Career Development Courses, provide members skills necessary to perform their the functions within the National Guard. RESPONSE: Defendant disagrees. The statement in paragraph 23 constitutes plaintiffs' argumentand legal conclusions, not statements of facts. Defendantavers that while Jane Doe1 migbt believe correspondencecourses providedher with the "skills necessary to perform[her] functions within the National Guard," the only members eligible to enroll in correspondence courses are "U.S. Active and Reservemilitary officers, warrant officers, and enlisted personnel.. " See DA 351-20, ']l 1-6. Thus, defendant further avers tbat if Jane Doe1 acquired "skills PAM necessary to perform[her] functions within the National Guard"by completingcorrespondence courses, then JmaeDoe1 acquired those skills in her ARNGUS capacity or as a civilian. 24. Military correspondencecourses are required to assist guard members performtheir job. RESPONSE: Defendant disagrees. The statement in paragraph 24 constitutes plaintiffs' argumentand legal conclusions, not a statement of fact. Defendantavers that while Jotm Doe4 might personally believe that he "requires" correspondence courses to perfomahis job in the ARNG, only members the eligible to enroll in correspondencecourses are "U.S. Active and Reservemilitary officers, warrant officers, and enlisted personnel..." See DAPAM 351-20, ~I I-6. Thus, defendantfurther avers that if JolmDoe4 acquired skills to assist himperformhis job in the ARNG completingcorrespondencecourses, then Jolm Doe4 acquired those skills in his by ARNGUS capacity or as a civilian.

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25. TheSecretary of the #a-myhas prescribed that Guardpersonnel are responsible for improvingtheir professional knowledge has identified nonresident instruction achieved and through correspondencecourse workas tbe primary methodto accomplishthis task. RESPONSE: Defendant disagrees. The statements in paragraph 25 constitute plaintiffs' argument legal conclusions, not statements of fact. Defendantavers that tbe source plaintiff and cites for support, AR351-1, does not prescribe training for members the ARNG. 351-1, '~f of AR 2-8 states that the Chief, National GuardBureau"is responsible for military and educationand training concepts, policies and programsfor personnel and units of the ARNG..." Chief, The National Guard Bureauhas only prescribed training policies for the ARNG NGR in (AR)350-1. Defendantalso avers that AR351-1, ~ 1-11 states that DA Pare 351-20outlines the Army's correspondence course program. DAPAM 351-20 explains that the only members eligible to enroll in correspondence courses are "U.S. Active and Reservemilitary officers, warrant officers, and enlisted personnel..." Sere DAPAM 351-20, ~I 1-6. Furthemaore, defendant avers that the Secretary has prescribed only three types of training duty for the ARNG: ADT, IDT, and 1) 2) FTNGD. Se..__ce DODD t215.6; DODD 1215.13; DODI 1215.19; and, NGR(AR) 350-1 26. The Secretary of the Anaayand Air Force have directed that all Guardmembers, including noncommissioned officers, warrant officers and commissioned officers, are responsible for training themselves through personal self-development. RESPONSE: Defendant does not disagree that members the military "are responsible of for training themselves tbrough personal self-development." Defendantdisagrees that tbe Secretary of the Army the Secretary of the Air Force bave "directed" that members or "are responsible for training themselves tt~rough personal self-development." Defendantavers tbat 12

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the sources plaintiffs cite for support for the statement containedin paragraph26 do not support the statement contained in paragraph26. 27. The Secretary of the Air Force requires Guardmembers complete Career to Development Courses ("CDCs"), which are correspondence courses that instruct Air Guard members their job specialties identified by Air Force Specialty Codes("AFSCs"). in RESPONSE: Defendant disagrees. The statements in paragraph 27 constitutes plaintiffs' argumentand legal conclusions, not statements of fact. Additionally, defendant avers that airmen are never required to take a correspondence course. 28. The CDC courses are available only as correspondencecourses. RESPONSE: Defendant disagrees. The statements in paragraph 28 constitutes plaintiffs' argument legal conclusions, not statementsof fact. and 29. The Air University website provides that only those members are required to who take CDC courses maysign up. RESPONSE: Defendant disagrees. Defendant avers that Airmenare not required to take CDC courses. Defendantfurther avers that tbe website uses the word'required' in the context of eligibility; that is, the airmanis eligible to take the CDC because is a prerequisiteto satisfy a it certain skill level in the airman'sspecialty. Airmen volunteer to completethese prerequisites. 30. Onlytaking CDCs satisfy a significant number Air Force job specialties. can of RESPONSE: Defendant disagrees. Air Force Specialties can be obtained without CDCs.Defendantagrees that CDCs be a prerequisite to advance within a Specialty, for may exan~ple,to achieve a 5-skill level. Defendant further avers that a prerequisite to completea CDC a particular skill level can be waived. for 13

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31. AmlyGuardand Air Guard Commanders responsible for ensuring all unit are persolmelare trained to performtheir respective functions. RESPONSE: Defendant does not disagree. Defendant avers however, that the sources plaintiff cites for support of the statements contained in paragraph 31, FORSCOM 350-2 Reg and FM 7-0, do not support the statements contained in paragraph 31. Paragraph1-4, of FORSCOM 350-2 discusses training strategy. Defendant notes that paragraph 1-4 of Reg FORSCOM 350-2 establishes that training will occur during periods of IDTor active duty. Reg Paragraph1-14 of FM discusses joint training at the strategic level and does not involve 7-0 ARNG training. Paragraph 1-19 discusses strategic training philosophy. The relevant sentence in paragraph 19 is: Commanders the ultimate responsibility to train soldiers and develop have leaders whocan adjust to changewith confidenceand exploit newsituations, teclmologyand developments their advantage. to 32. Army Guard commanders have been directed to ensure that training is a numberone priority. RESPONSE: Defendant disagrees. The statements in paragraph 27 constitutes plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers that the source plaintiffs cite for support for the statements contained in paragraph32, FM 7-0, does not support the statements contained in paragraph32. Defendmat does agree that training is the number priority of any commander, one however,defendant avers that it is "unit" training that is a number priority. Defendantfurther avers that FM7-0 does not prescribe training. FM one 7-0 merely establishes overarching general guidance for its members understand howthe Army to plans and executes training and developsfuture leaders. 14

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33. The Secretary of the Armyhas authorized commanders order ArmyGuard to members performsupplementaltraining to ensure that individual training requirementsare to satisfied. RESPONSE: Defendant disagrees. The statements contained in paragraph 33 constitute plaintiffs' argument legal conclusions, not statements of fact. Defendant and avers that the source plaintiffs cite for support for the statementsin paragnaph paragraph1-2 of National 33, GuardRegulation 350-1, TraininT: Arm,,' National Guard Training, 30 Nov. 1983 ("NGR 350-1 (obsolete version"), does not support tbe statements contained in paragraph34. Paragraph1-2 NGR 350-1 (obsolete version) allows for supplementaltraining in a full-time status. Moreover, paragaph 1-2 of NGR 350-1 (obsolete version) makesclear that the cited regulation "established guidancefor the executionof policies and procednresfor training units," not individuals. Defendantfurtber avers howeverthat plaintiffs source for the statement contained in paragaph 33, National Guard Regulation 350-1, ArmyNational Guard Training, 30 NOV 83 ("NGR 350-1"), was superseded in June 1991. Tbe June 1991 version of NGR 350-1, which still in effect, does not contain the referenced language.Defendant also avers that any training ordered by ARNG commanders must be in a duty status prescribed by the Secretary and in accordancewith standards established by the Secretary. TheSecretary has prescribed only three types of training duty for the ARNG: ADT,2) IDT, mad3) FTNGD. 1) Sere DODD 1215.6; DODD 1215.13; DODI1215.19; and, NGR(AR) 350-1. 34. Supplemental training includes training conferences, training seminars, and tbe correspondence courses within the ArmyCorrespondence Course Progam.

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RESPONSE: Defendant does not disagree. Defendant avers that NGR 350-1 (obsolete version) allows for supplementaltraining in a full-time status. Moreover,paragraph 1-2 of NGR 350-1 (obsolete version) makesclear that the cited regulation "established guidancefor the execution of policies and proceduresfor training units," not individuals. Defendantfurther avers that if plaintiffs obtained supplemental training, it had to havebeenaccomplished a full-time in duty status for unit-based missions. Defendant also avers that the plaintiffs source for the statement contained in paragraph 34, National Guard Regulation 350-1, AmlyNational Guard Training, 30 NOV ("NGR 83 350-1"), was superseded in June 1991. The June 1991 version NGR 350-1, whichis still in effect, does not contain the referenced language. 35. TheSecretary of the Air Force has delegated authority to Air Guardofficers and noncommissioned officers to give lawful orders in the exercise of their duties, whichspecifically includes completionof proficiency training and professional military education courses through correspondence course work. RESPONSE: Defendant disagrees. The statements contained in paragraph 35 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers that Air Force iaastruction, 51-604, Appointmentand Assumptionof Command, October 2000 ("AFI 51-604), t

on applies to plaintiffs as members the Air National Guardof the United States. Defendant of further avers that the Secretary does not "delegate" authority to issue orders becausethat authority is inherent in the rank of the individual. 36. Mr. Clark and other ArmyGuard membersPlaintiffs have completed numerous

correspondence courses to satisfy individual training requirements.

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RESPONSE: Defendant does not disagree that plaintiffs

have completed

correspondencecourses. Defendantavers however,that the Secretary has prescribed only three types of training for the ARNG: ADT,2) IDT, and 3) FTNGD. 1) DODD 1215.6; DODD 1215.13; DODI 1215.19; and, NGR(AR) 350-1. Furthemmre, DAPAM 351-20 explains that the only members eligible to enroll in correspondencecourses are "U.S. Active and Reservemilitary officers, warrant officers, m~denlisted personnel..." See DAPAM 351-20, ¶ 1-6. Thus, defendant disa~ees that Mr. Clark and the other Army plaintiffs whohave elected to complete correspondence courses, completed correspondence courses as members the ARNG. of Defendant further avers that if plaintiffs completed correspondence courses "to satisfy individual training requirements," they did so in their ARNGUS status, or as civilians. 37. The Air Guardmember Plaintiffs have also been required to complete CDCs as required individual training for duty qualification. RESPONSE: Defendant disagrees. The statements contained in paragraph 37 constitute plaintiffs' argument legal conclusions,not statementsof fact. and 38. Army correspondencecourses provide an "equal level of attainment with resident instruction" and are "required"to: (1) Enable personnelof all Army components obtain or further their military education. to (2) Provide education which must be completedas a prerequisite for promotionof ARNG and USAR personnel not on active duty. (3) Accommodate supplement skill progression and MOS and functional courses. These courses providefor "training up" of soldiers to support duty position specific skills in career assignmentsprior to attendance at resident schools or whenresident school is not available or 17

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feasible. RESPONSE: Defendant agrees that paragraph 7-6 of AR351-1 states that "successful completionof Amay nonresident instruction is considered on an 'equal level of attainment with resident instraction.'" Defendantdisagrees that correspondence courses are "required" by the Secretary for the purposesasserted by plaintiffs in paragraph38. Defendant avers that the source plaintiff cites for snpport, AR 351-1, does not prescribe or "require" training for members the of ARNG. Defendantfurther avers that AR 351-1 states that the Chief, National GuardBureau"is responsible for military and education and training concepts, policies and programsfor personnel and units of the ARNG..."The Chief, National Guard Bureauhas only prescribed training policies for the ARNG NGR in (AR)350-1. Defendantalso avers that AR351-1, ¶ 1-11 states that DAPare 351-20 outlines the Amay'scorrespondence course program. DAPAM 351-20 explains that the only members eligible to enroll in correspondencecourses are "U.S. Active mad Reservemilitary officers, ~varrant officers, and enlisted personnel..." Se__~eDA 351-20, PAM ¶ 1-6. 39. AnArmy study concluded that distance education technologies produce student with equivalent or superior levels of knowledge than studeuts of in-resident instruction for many subject areas. RESPONSE: Defendant agrees. 40. AnAm~y study also concluded that distance education provides other advantages over resident courses, including: 1) greater flexibility and shorter instruction time; 2) reduced equipment infrastructure costs; and, 3) elimination or reduction in travel costs. and RESPONSE: Defendant agrees. 18

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41. Air Guardnoncommissioned officers have been directed to "seek every opportunity for continued professional developmen~ in-resident and/or correspondence)"courses, and (by have been authorized to satisfy these training requirementsthrough completionof correspondence courses. RESPONSE: Defendant does not disagree that ANG "noncommissioned officers have been directed to 'seek every epportunity for continued professional development in-resident (by and/or correspondence)'" courses. Defendant disagrees that members the ANG of have been "authorized to satisfy these training requirementstl~rough completionof correspondence courses." Defendantfurther avers that if plaintiffs completedcorrespondence courses as contendedin paragraph 41, they did so based on their membership the Air National Guardof in the UnitedStates ("ANGUS"), as a civilian. Defendant or also avers that if plaintiffs did completecorrespondencecourses, they did so in a voluntary, non-compensable status. 42. Residenttraining alone is insufficient to satisfy all training requirements all for Guard members. RESPONSE: Defendant disagrees. The statement contained in paragraph 42 constitutes plaintiffs' argumentand legal conclusion, not a statement of fact. Defendantavers that the source plaintiffs cite for support of the statements containedin paragraph42, Department the of Army Pamphlet 350-58, The Enduring Legacy: Leader Development for America's Area,/, 13 October 1994("DAPain 350-58"), does not support the statements contained in paragraph 42. 43. A study commissioned the Amay by determined that manystudents cannot satisfy individual training requirementsthrough in-resident courses because "not enoughschool seats wereallocated to their unit ..." 19

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RESPONSE: Defendant agrees. 44. Shortagesof in-resident course availability have preventedPlaintiffs from completingrequired individual training through in-resident programs,and required the completionof correspondencecourses instead. RESPONSE: Defendant disagrees. The statement contained in paragraph 44 constitutes plaintiffs' argument legal conclusion, not a statementof fact. Defendant and avers that plaintiffs havenot providedany evidencethat demonstrates that they, their units, or their respective state guard bureaus, haveever requestedslots for plaintiffs to attend the in-resident military courses they assert they couldnot get slots to attend. 45. Byserving as substitutes for in-resident programs,correspondencecourses, along with other types of distance learning programs,makeup the chronic shortage of available inresident slots for enlisted professional development courses. RESPONSE: Defendant disagrees. The statement contained in paragraph 45 constitutes plaintiffs' argument legal conclusion, not a statement of fact. Defendant and avers that there is no legal basis for plaintiffs' contentionthat correspondence coursesare "substitutes for inresident programs." 46. The Commander's Safety Course, a portion of the Warrant Officer AdvancedCourse Phase I of the Battalion/Brigade Pre-Command Course, and several mandatorycorrespondence courses for ArmyGuardparalegals are required Amay Correspondencecourses with no inresident option. RESPONSE: Defendant disagrees. The statement contained in paragraph 46 constitutes plaintiffs' argument legal conclusion, not a statement of fact. Defendantavers that the and 2O

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sources plaintiffs cite for support of the statement containedin paragraph46, do not support the statemeuts contained in paragraph 46. The August14, 2003 messagethat discusses the Commander's Safety Course is addressed to the active component, and not the ARNG. DA PAM 351-20 explains tbat the Army CorrespondenceCourse Programis only available to "U.S. Active and Reservemilitary officers, wmTant officers, and enlisted personnel..." Se_..~e DA PAM 351-20, ¶ 1-6. Defendantfurther avers that DAPAM 350-58 is inapplicable as cited. Defendant also disagrees that the course plaintiffs mentionin paragraph46 are "mandatory" "required." or Finally, defendantavers that if plaintiffs completed correspondence courses to attain credit for any of the courses listed in paragraph 46, they did so voluntarily, as members the ARNGUS of or as civilians. 47. Theservice Secretaries treat correspondence courses as educational "equivalents" to required in-resident courses for which Guardmembers always have received cgmpensation. RESPONSE: Defendant disagrees. The statements contained in paragraph 47 constitute plaintiffs' argument legal conclusion, not a statement of fact. Defendantavers that the and sources plaintiffs cite for support of the statements contained in paragraph47, AR 350-1, AR 351-1, and TRADOC Regulation 350-10, Institutional Leader Trainin~ and Education, 12 Aug

2003, do not support the statements contained in paragraph 47. AR350-1 does not apply to plaintiffs because AR350-I only applies to the ARNGUS. 351-1 applies to the ARNG, AR but

AR351-1, does not prescribe training for members the ARNG. 351-1, ¶ 2-8 specifically of AR states that the Chief, National GuardBureau"is responsible for military and education and training concepts, policies and programsfor personnel and units oftbe ARNG..." Chief, The National GuardBureau has only prescribed training policies for the ARNG NGR in (AR) 350-1. 21

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Defendantalso avers that AR351-1, ¶ 1-I 1 states that DAPam351-20 outlines the Anny's correspondence course program. DAPAM 351-20 explains that the only memberseligible to enroll in correspondence courses are "U.S. Active and Reservemilitary officers, warrant officers, and enlisted personnel..." Se__~eDAPAM 351-20, ~ 1-6. Defendantavers that correspondence courses address similar areas of instruction as in-resident training and members complete who correspondencecourses for self-developmentdo receive recognition for doing so, correspondence courses are not "equivalent" for "equivalent training" purposes. 48. TheSecretary of the Army prescribed that "[d]iplomas and certificates issued has will not reflect nonresident[training]. They ~vill only contain the title of the course, to preclude resident courses from being reco~aized morefavorably than other courses. RESPONSE: Defendant agrees. 49. Army Guardmembers taking non, resident courses are also evaluated using the same form used to evaluate students of nonresident courses. RESPONSE: Defendantdoes not disagree if plaintiffs contention in paragraph 49 is that as members the ARNGUS, of members taking nonresident courses are also evaluated using the samefomaused to evaluate students of nonresident courses. Defendantavers that the source plaintiffs cite for support for the statements containedin paragraph49, AR 351-1, states that DA Pam351-20 outlines the Amay'scorrespondence course program. DAPAM 351-20 explains that the only members eligible to enroll in correspondencecourses are "U.S. Active and Reserve military officers, warrant officers, and enlisted persolmel..." Se__~e PAM DA 351-20, ¶ I-6. ArmyNational Guard membersenroll in correspondence courses as membersof the ARNGUS.

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50. The Secretary of the Air Force has directed that "nonresident programsmirror resident programs the extent practical." to RESPONSE: Defendant agrees. 51. Correspondence courses are required as "training requirements" in the "Army ia~dividual Training Requirementsand Resources System" (ATRRS), 350-10..." AR RESPONSE: Defendant disagrees. The statements contained in paragraph 51 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendantavers that the document plaintiffs cite for support for the statements in paragraph51, Army Regulation350-10, Am~¥ Individual Trainin~ Requirements and Resources System, 14 September 1990 ("AR 35010"), does not support the statements asserted in paragraph51. Defendant further avers that the words "correspondencecourses" are not contained in AR350-10. 52. TheSecretary of the Amay specified that courses representing training has requirements be loaded into ATRRS, this "training requirements" system contains a catalog and of resident and nonresident training courses. RESPONSE: Defendant disagrees. The statements contained in paragraph 52 constitute plaintiffs' argument legal conclusions, not statements of fact. Defendantavers that the and document plaintiffs cite for support for the statements in paragraph52, AR 350-10, does not support the statements asserted in paragraph 52. Defendantfurther avers that the word "nonresident" is not contained in AR350-10. 53. The Secretary of the Army does not permit Guardmembers sigaa up for to non,resident or correspondencecourses if the member already attained the competencies has taught in the course by someother means. 23

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RESPONSE: Defendant disagrees. The statements contained in paragraph 53 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendantavers that paragraph 3-8.a.(2) of AR 351-1actually states: Persons whoreceive constructive or equivalent credit for a course are not eligible or required to attend the respectiveresident or nonresident, or correspondencecourse." Defendant further avers that paragraph3-8.b.(1) - (3) sets forth a list of reasons that allow credit to be granted, and completingcorrespondence courses is not on that list. 54. Both the Army Air Guardplaintiffs have completedrequired leadership and development courses tt~ough correspondencecourse workas full substitutes to resident courses, these courses include: See, e.g., Command General StaffCollege, ACCP 4-60, App.__, and ¶ Noncommissioned Officer AcademyCourse, AFIADL Catalog, pp. 20-24, App.__, Senior NoncommissionedOfficer AcademyCourse, AFIADL Catalog, pp. 25-29, App.__, Squadron Officer School, AFIADL Catalog, pp. 29-34, App.__, and Air Command Staff College, and AFIADL Catalog, pp. 34-38, App.__. RESPONSE: Defendant disagrees. The statements in paragraph 54 constitutes plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers that the Secretary has prescribed only three types of training: 1) ADT, IDT, and 3) FTNGD. 2) While correspondence courses maybe prerequisites for certain positions and advancement their units, in correspondence courses are not prescribed as ADT,IDT, or FTNGD. Defendant further avers that ARNG memberswhochoose to complete correspondence courses, do so as membersof the ARNGUS as civilians. or

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55. TheSecretary o~'the Air Force has also prescribed a nonresident version of the Air WarCollege. RESPONSE: Defendant agrees that the Secretary has established a nonresident Air War College. Defendantdisagrees that the Secretary has "prescribed a nonresident version of the Air WarCollege." Defendantavers that at this senior level of professional military education, selection for in-residence attendance is competitiveand selections are madeon a best-qualified basis. See Air Force Instruction 36-2301, Personnel. Professional Military Education, 27 June 2002, para 3.2 ("AF 36-2301"). Defendantfurther avers that the Air Force Personnel Center tasked to select those officers "whohavepotential to be in key leadership positions" to attend resident PME schools. The courses are sufficiently different that completing nonresident PME programswill not affect eligibility for resident PME programs.See AFI36-2301,para 3.2.1. 56. There are several multi-phased leadership development courses prescribed by the Secretary of the Army that involve both resident phases of instruction and phases available only tl~rough correspondencecourse work, these correspondencecourses include: RCBasic Noncommissioned Officer Course (Phase II of III). RESPONSE: Defendant disagrees. The statements in paragraph 56 constitutes plaintiffs' argumentand legal conclusions, not statements of fact. Defendmlt does not disagree that there are military courses that are conductedin phases. Defendant avers that becausethe Secretary has prescribed only three types of training: 1) ADT, IDT, and 3) FTNGD; 2) plaintiffs chose to completecorrespondencecourses for these courses, they did so as members of the ARNGUSas civilians. Defendantalso notes that the course plaintiffs specifically note in or

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paragraph 56, "RCBasic Noncommissioned Officer Course (Pbase H ofl]I)," specifically applies to the Reserve Component. 57. The Army Guardplaintiffs also have completedcorrespondencecourses that are prerequisites to participating in required in-resident training programs. RESPONSE: Defendant disagrees. The statement in paragraph 57 constitntes plaintiffs' argumentand legal conclusions, not statements of fact. Defendantavers that the Secretary has prescribed only three types of training duty for the ARNG: ADT, IDT, and 3) FTNGD. 1) 2) Se_~e DODD 1215.6; DODD 1215.13; DODI1215.19; and, NGR(AR) 350-1. Defendant further avers that Jolm Doei chose, or volunteered, to become WarrantOfficer, whichcertain a correspondence course workwasa prerequisite for eligibility to become warrant officer. a Defendantalso avers that the military did not require Jolm Doe1 to become WarrantOfficer. a Defendantmaintains that if John Doe1 did volunteer and complete workon correspondence courses, he did so as a member the ARNGUS as a civilian and not as IDT. of or 58. To ensure that each unit is prepared to accomplishits primary and secondary missions, every unit in the Army National Guardis required to develop a MissionEssential Task List ("METL"). RESPONSE: Defendant does not disagree tbat units in the ArmyNational Guard develop METLs. Defendantavers howeverthat the documentary source plaintiffs cites for support of the statements containedill paragraph58, FM 7-0, does not prescribe training or "require" that ArmyNational Guard units develop METLs. 7-0 merely establishes FM overarching general guidance for its members understand howthe Army to plans and executes training and developsfuture leaders. 26

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59. A METL consists of a list of collective tasks "in whichthe organization has to be proficient to accomplishan appropriate portion of its wartimeoperational mission." RESPONSE: Defendant does not disagree that units in the ArmyNational Guard develop METLs that a "METL or consists of a list of collective tasks." Defendantavers however that the documentary source plaintiffs cites for support of the statements contained in paragraph 59, FM7-0, does not prescribe training or "require" that Amay National Guardunits develop METLs. 7-0 merely establishes overarching general guidance for its members understand FM to howthe Army plans and executes training and develops future leaders. 60. TheSecretary of the Army characterized training that is "necessary to achieve has and sustain METL proficiency" as a "training requirement." task RESPONSE: Defendant does not disagree. Defendant avers however that the source plaintiffcites for support of the statements in paragraph60, paragraph4-5 of FM 7-0, actually states that for plarmingpurposes,"[t]he training requirementis the training necessaryto achieve and sustain METL task proficiency within the Bandof Excellence?' The term "Band of Excellence"is defined in FM7-0 as the "range of proficiency within whicha unit is capable of executingits critical wartimetasks, with minimal refresher training, using appropriaterepetitions of critical task training. FM Glossary-9. 7-0 61. The Secretary of the Amay delegated its authority to require or direct members has of the National Guardto perform training or instruction based on each unit's METL Guard to commanders. RESPONSE: Defendant disagrees. The statements contained in paragraph 61 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers that the 27

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sources cited by plaintiffs for support of the statement contained in paragraph61, paragraphs2-2 and 3-30 of FM 7-0, do not support plaintiffs' contention that the "Secretary of the Army has delegated its authority to require or direct members the National Guardto performtraining or of instruction based on each unit's METL Guard commanders." to Defendant agrees that commanders responsible for training their units upon METL are tasks; however, FM7-0 merely establishes overarching general guidance for its members understand howthe Army to plans and executes training and developsfature leaders. TheSecretary has only prescribed training requirements for the ARNG DODD in 1215.6; DODD 1215.13; DODI1215.19; and, NGR(AR) 350-1. 62. ha order to achieve competency the tasks specified on the METL, in each soldier must completeindividual and unit training. RESPONSE: Defendant does not disagree that METL training is conducted as unit or collective training and as individual training. Defendant avers that ARNG training is "unit based," and METL training is accomplished using individual and collective training techniques, done while a member on ADT,IDT, or FTNGD. is These are the only three prescribed training statuses for members the ARNG. of 63. Individual training that guard members required to completefor the METL are includes instrumentpractice, school instruction and other institutional training that instructs members leadership and task responsibilities for their jobs. in RESPONSE: Defendant does not disagree. Defendant avers that ARNG training is "unit based," and METL training that is accomplished using individual training techniques, is done

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while a member on ADT,IDT, or FTNGD. is These are the only three prescribed training statases for membersof the ARNG. 64. Commanders develop training plans that focus on collective and individual training to "result in proficient individuals, leaders and units." RESPONSE: Defendant disagrees. The statements contained in paragraph 64 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendant avers that the sources cited by plaintiffs for support of the statementscontained in paragraph64, paragraphs14 and 2-2 of FM7-0, do not support plaintiffs' contention that "Commanders develop training plans that focus on collective and individual training to 'result in proficient individuals, leaders and units.'" Thewords"collective and individual training" are not containedin plaintiffs cited paragraphs. Defendant further avers that the source plaintiff cites for support, FM 7-0, does not prescribe training. FM7-0 merely establishes overarching general guidance for its members to understand howthe Army plans and executes training and develops future leaders. 65. Yearly Training Guidance("YTG")memoranda specify collective, individual and institutional training that members required to performin the followingyear. are RESPONSE: Defendant disagrees. The statements contained in paragraph 65 constitute plaintiffs' legal conclusions, not statementsof fact. Defendant avers that the source cited by plaintiffs for support of the statements contained in paragraph65, paragraph4-4 of FM7-0, does not support plaintiffs' contention that "Yearly Training Guidance("YTG") memoranda specify

collective, individual and institutional training that members required to performin the are followingyear." Thewords"collective, individual and institutional training" are not contained in plaintiffs cited paragraph.Defendant further avers that the source plaintiff cites for support, 29

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FM7-0, does not prescribe training. FM7-0 merely establishes overarching general guidance for its members understand howthe Army to plans and executes training and develops future leaders. 66. YTG memoranda specify that Guard membersmust complete correspondence courses for duty qualification and leadership development. RESPONSE: Defendant disagrees. Defendant avers that the Mississippi ARNG YTG

for 2003 does not mention correspondencecourses let alone "specify that Guardmembers must complete correspondencecourses for duty qualification and leadership development." Defendant further avers that ARNG training is "unit based," that is conductedpursuant to DODD 1215.6; DODD 1215.13; DODI 1215.19; and, NGR(AR) 350-1. Other training, if completed through

correspondence courses, it is voluntary and completed as a member the ARNGUS as a of or civilian. 67. Dutyqualification and leadership development courses are higher in priority than unit and collective training. RESPONSE: Defendant agrees this is stated in the cited YTGs.Defendant avers that ARNG 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 completed through correspondence course work, it is voluntary and completedas a member the ARNGUS as a civilian. of or 68. Commanders satisfy MOS leadership development training requirements by and instructing Guardmembers completethe relevant correspondencecourse(s). to RESPONSE: Defendant disagrees. The statements contained in paragraph 68 constitute plaintiffs' argumentand legal conclusions, not statements of fact. Defendantavers that ARNG 3O

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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