BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160001181 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160001181 The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160001181 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the characterization of his discharge be changed from "unknown" to "honorable" as shown on his orders, dated 15 March 2005. 2. He states that his discharge orders, dated 15 March 2005, were revoked/rescinded on 17 March 2005 due to indebtedness that has since been erased. 3. He provides: * Headquarters, 108th Division (Institutional Training) Orders 05-074-00006, dated 15 March 2005 and Orders 05-076-00005, dated 17 March 2005 * Memorandum, Headquarters, U.S. Army Reserve Command, dated 1 February 2006 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Having prior enlisted service, the applicant served as a commissioned officer in the Army National Guard (ARNG) and the U.S. Army Reserve (USAR). On 28 August 1996, he was honorably discharged from the USAR per Orders D-08-674528 issued by the USAR Personnel Center. 3. The applicant provides Orders 05-074-00006, which honorably discharged him from the USAR on 15 March 2005, and Orders 05-076-00005, dated 17 March 2005, which revoked his 15 March 2005 discharge order. 4. In addition, he provides a memorandum from Headquarters, USAR Command, Army Reserve G-1, dated 26 January 2006. This memorandum states the Defense Finance Accounting Service (DFAS) forwarded checks to the applicant for the Battle Assemblies that he attended in December 2004 and January 2005. It was later determined he was not entitled to pay and he was sent a collection notice. After additional research it was found that he never cashed the checks so the collection notice was deleted and the debt was erased. Assignment orders were never published assigning the applicant to a USAR unit. 5. On 14 March 2017, the U.S. Army Human Resources Command (HRC), Chief, Personnel Action Branch provided an advisory opinion in support of this case. The HRC official stated: a. The applicant was discharged on 28 August 1996 as a two time non-select for promotion with a characterization of service of honorable. This discharge made him ineligible to voluntarily return to an active status. A copy of Orders D-08-674528, issued by the USAR Personnel Center, dated 28 August 1996, should serve as validation of his current characterization of service. b. The discharge order that the applicant received from the 108th Division (Institutional Training) was published in error. The applicant was added to the unit's database without assignment orders. It appears that the unit generated a discharge order in an effort to remove him from their unit. Being that he was never truly assigned to the unit on orders, the discharge order was then revoked. The revocation of the 108th Division (Institutional Training) discharge order reverted his separation status back to an effective date of 28 August 1996 with a characterization of service as honorable. There was no documentation found in his official military personnel record showing a change to his characterization of service. c. To validate his status in Defense Enrollment Eligibility Reporting System (DEERS), and to determine if he was receiving any retired pay, disability pay, or was in any other status that would warrant his eligibility for a military identification card, a copy of his discharge order was provided to the HRC DEERS and Reserve Retirement Pay offices. Based upon their findings, there was no supporting data in DEERS or DFAS which would warrant him receiving a military identification card. 6. There are no documents filed in the applicant’s official military personnel file or provided by the applicant indicating that the characterization of his service is "unknown." 7. On 15 March 2017, the applicant was provided a copy of the advisory opinion for comment. He did not respond. REFERENCES: 1. Army Regulation 135-100 (Army National Guard and Army Reserve – Appointment of Commissioned and Warrant Officers of the Army) establishes responsibility and provides procedures for the appointment of commissioned and warrant officers in the Reserve Components of the Army. Paragraph 1-7 (Ineligibles) states individuals who were former officers who were twice passed over for promotion are ineligible for a new appointment unless a waiver is authorized. Waivers will be considered for individuals in approved medical or dental schools or undergoing civilian internship or residency training. 2. Army Regulation 310-10 (Military Orders) provides the policy and procedures for preparing and issuing orders for military personnel and units. Orders are required for certain travel, promotion, certain personnel actions, and separation. Authority to issue orders is vested in command. Therefore, commanders may issue orders based on the basis of authority inherent in their positions, standing authority provided through regulations, or temporary authority delegated under certain circumstances. Publication of orders are required for assignments between control groups and USAR units, or between USAR units and control groups of the Army Reserve. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant was honorably discharged on 28 August 1996 from the USAR after his two-time non-selection for promotion to major. His discharge was effected through the publication of orders as required by regulation. There is no evidence to show this discharge was changed to "unknown" due to a debt or for any other reason. In 2005, for unknown reasons, the 108th Division (Institutional Training) appears to have entered the applicant’s information into their database. To remove the applicant’s name from the database, the Division published an order honorably discharging him from the USAR. Within two days that order was revoked by the same organization, as the first order appears to have been erroneously published. 2. There is no evidence the applicant was reappointed a Reserve commissioned officer after his 1996 honorable discharge. A review of the applicable regulation shows he was not eligible for a reappointment as a commissioned officer due to being twice passed over for promotion. It also appears he did not meet the regulatory criteria for a waiver of appointment. Thus, the only valid discharge is the 1996 order which honorably discharged him from the Army Reserve. After that order he had no active or inactive status in the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001181 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001181 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2