ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 September 2019 DOCKET NUMBER: AR20170002738 APPLICANT REQUESTS: * change his military status “Retired Reserve” by restoring him to the Active Guard Reserve (AGR) * if denied restore him to the Inactive (i.e. Individual) Ready Reserve (IRR) * exception to Army Regulation (AR) 140-10 (Assignments, Attachments, Details, and Transfers) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Online) * two letter of recommendations in email format * two DD Form 214s (Certificate of Release or Discharge from Active Duty * orders R-06-984569A02 (AGR Indefinite Orders) * self-authored agreement with wife * deposition of wife * 20 year letter * family attorney letter * Expungement Order * DD Form 149 (Application for Correction of Military Record) * executive summary part I * executive summary part II * chaplain affidavit * DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) * orders C-11-615292 (Retired Reserve) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states his current status is "Retired Reserve". He is requesting to be fully restored to AGR status. If he is not approved for full restoration to AGR, which he was previously serving an indefinite contract prior to being in the Retired Reserve, he would like to be considered for the IRR, so that he can fill one of the several 38A (Civil Affairs Office) positions open on active duty and Troop Program Units (TPU). a. He is respectfully requesting the [Board’s] assistance in having his status corrected from "Retired Reserve" to "IRR", now that his characterization of discharge has been upgraded to "honorable, under general conditions" (i.e. general, under honorable conditions). b. He was informed that he is not eligible to return to service because his personnel file has been coded to reflect being removed from service due to Board, legal or administrative action, AR 140-10, and containing a general officer memorandum of reprimand (GOMOR). He submits that he should be granted an exception to AR 140- 10, since he resigned from his position, he was not relieved of his duties due to any board directed action. He resigned under extreme duress and merely had a "Hobson's Choice" whether to resign or probably lose the temporary custody of his then six-year- old daughter X___. He was going through a divorce during this time and custody of his youngest daughter was the focal point, he would not have resigned otherwise. c. His trial defense counsel recommended he take an Article 32 hearing and proceed to a court martial if directed where he had a solid chance of not having the charges remain against him and he would be retained on active duty. He did not take this advice because of the strong possibility of losing custody of his youngest daughter. He continued to espouse his innocence to the charges. The civilian authorities, after a thorough investigation, found no evidence of any crimes and dropped all charges and expunged his record. The military rushed to judgement without conducting an investigation, (Captain (CPT) X___ X___, counsel for his command claimed to have done so). A GOMOR was issued only 5 weeks after a sworn statement of wrongdoing was filed by his former spouse. That action is being appealed under a separate filing. d. He represents that the bottom line is that he was and am innocent of all claims by his former spouse and the criminal and family courts of County, bears this out. This was/is a travesty of justice. He was determined guilty until proven innocent. The problem with this premise is that one can never prove innocence after charges are filed. They can only prove that they are not guilty. He did this beyond a reasonable doubt. He was and continues to be punished for crimes he never perpetrated upon his former spouse. His former spouse set him up to violate a direct order by a senior officer. In a deposition to the family court in she did admit, under oath, of lying to and about him in several instances. His command would not consider these facts. His former spouse was proven in court to be a habitual liar and a master manipulator to get her way and what she wanted. Her sworn statements should never have been held as true by the military because of these found facts. e. He requested a competency evaluation because of the severe stress he was experiencing because of the failure of his marriage. He attempted to self-admit but was refused because he was told his chain of command had to make this request, (untrue). His trial defense counsel made a written request to his command through CPT X___, command prosecutor. It was never acted upon, nor was his mental health evaluation that was performed on 25 May 2012, ever sent to the Human Resources Command (HRC), or the Third Army Commander, Lieutenant General X___ X___, when his resignation packet was sent through channels for consideration. He submits that if CPT X___ and the special troops battalion commander, Lieutenant Colonel X___ X___, had sent his full and complete file up the chain, he may have received an honorable discharge, or at least an honorable under general conditions (i.e. general, under honorable conditions) discharge right from the start and would not have had to go before the Army Discharge Review Board (ADRB) for this upgrade. 3. The applicant provides: a. Letters of recommendations from two separate emails, the first email states, the applicant is very intelligent, a true professional and gentleman. He is dedicated to doing his very best in whatever he is engaged in. He is a family man of the highest integrity, loyalty, capability, and dependability. In the second email, X__ X___ states, “you are the real hero for the wonderful accomplishments made that far surpassed what X___ has done. You, my friend, should be nominated as the Hero of the Year not only for your incredible contributions but also for enduring the most arduous assignment performed under incredibly harsh and hostile conditions.” b. The applicant typed an agreement between him and his wife, dated 29 June 2012, signed by him, his wife, and witnessed by X___ X___. It states the living arrangements until his wife could find safe and affordable quarters. c. Deposition of the applicant’s wife X___ X___, dated 29 June 2012, is a certified verbatim report taken pursuant to notice and in accordance with the SC Rules of Civil Procedure and Amendments as adopted by the Supreme Court. This is a detailed 120 pages of questions and answers for the family court in the state of SC County/City of Sumter (detailed deposition enclosed in packet). d. Family attorney letter are bullets taken by the applicant of advice given to him by his family attorney, Mr. X___ "X__" X___, in regard to his incarceration at the Shaw Force Base, between 9 August and 22 October 2012. Mr. Wilson was handling his divorce case against X___ X___, his spouse at that time. The attorney’s advice is enclosed in the packet. e. Expungement Order, on 22 November 2013, the applicant’s charges of domestic/ criminal domestic violence - 1st offense and harassment were dismissed. The state of SC County/City of Sumter, the state of SC, in the magistrate/municipal court ordered all records relating to these offenses expunged and destroyed. f. DD Form 149, dated 17 September 2012, the applicant requested an upgrade of his discharge from service from under other than honorable conditions (UOTHC) to honorable. He provided a detailed executive summary part I and part II of his personal circumstances, military service and events leading up to his discharge (detailed summaries enclosed in packet). g. Chaplain affidavit, dated 2012, states that Chaplain X___ X___ counseled the applicant and his wife individually and as a couple. His experiences with the [applicant] were pleasant. The [applicant] presented [himself] as a very loving and concerned husband and father, one truly dedicated to his family. Additional comments may be reviewed on the chaplain’s affidavit (detailed affidavit enclosed in packet). 4. A review of the applicant’s service record shows: a. Having had prior service in the U.S. Army Reserves (USAR) as an officer and enlisted Soldier, he was appointed as a captain and executed an oath of office on 12 April 2007. b. He was promoted to major (MAJ) on 26 June 2009. c. On 17 February 2012, the U.S. Army Human Resources Command (AHRC), published orders R-06-984569A02, which changed his active duty commitment to indefinite effective 17 February 2012. d. On 6 November 2012, he was discharged from active duty under the provisions of AR 600-8-24 (Officer Transfers And Discharges), paragraph 3-13, in lieu of trial by court-martial. His initial characterization of service was UOTHC and was upgraded to general, under honorable conditions in 2015. He completed 3 year, 2 months and 20 days of net active service this period. His DD Form 214 shows he was awarded or authorized: * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal w/Campaign Star * Army Service Ribbon * Overseas Service Ribbon * Army Reserve Component Overseas Training Ribbon * Armed Forces Reserve Medal w/M Device * Armed Forces Reserve Medal with "M" Device * 20 Year Silver Hourglass e. The applicant was issued his 20 year letter on 17 January 2013 from the U.S. AHRC. 5. On 17 September 2012, the applicant applied to the ADRB requesting an upgrade of his discharge from service from UOTHC to honorable. On 12 January 2015, the ADRB determined that the characterization of service was too harsh based on the applicant's length and quality of his service to include his combat service and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was proper and equitable and voted not to change it. 6. On 4 November 2016, the U.S. AHRC published orders C-11-615292 transferring him from the USAR Control Group (Reinforcement) to the Retired Reserve on 12 November 2012 by reason of completing 20 or more years of Reserve duty. 7. On 8 September 2018, the U.S. AHRC voided the applicant’s DD Form 214s issued on 30 July 2015 with a separation date of 6 November 2012 due to the applicant requested to have the Title 10 USC 12301(d) code added to the remarks section of his DD Form 214. A new DD Form 214 will be administratively issued. Currently there is no new DD Form 214 in his Army Military Human Resource Record. 8. On 15 January 2019, the U.S. AHRC published orders COl-990450 placing him on the Army of the U.S. Retired List in the retired grade of MAJ effective 25 March 2019. 9. By regulation, AR 140-10, chapter 6, transfers from the Retired Reserve to the Ready Reserve is based on the Soldiers status. A Soldier who is not receiving retired pay and is otherwise qualified and not prohibited, may be transferred to the IRR, or to an appropriate TPU or Individual Mobilization Augmentation position vacancy. The transfer must be voluntary based on the Soldier's request. All Retired Reserve members who were removed from active status by board action or operation of law are ineligible for transfer to the Ready Reserve. BOARD DISCUSSION: After reviewing the application and all evidence, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. The Board agreed his request for reinstatement does not have merit has he was placed in the Retired Reserve in accordance with public law. The Board determined there is insufficient evidence to grant relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X: X: X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), in effect at the time, prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer U.S. Army Reserve (USAR) Soldiers. Chapter 6 (Transfer to and from the Retired Reserve), section II (Transfer from the Retired Reserve), paragraph 6-4 states the criteria for transfer from the Retired Reserve to the Ready Reserve is based on the Soldiers status as noted in a through c below. a. Transfer is not authorized for Soldiers receiving retired pay unless the Secretary of the Army makes a special finding that their services are indispensable (10.USC 269(d)). b. A Soldier who is not receiving retired pay and is otherwise qualified and not prohibited under c below, may be transferred to the Individual Ready Reserve, or to an appropriate Troop Program Unit or Individual Mobilization Augmentation position vacancy. The transfer must be voluntary based on the Soldier's request. c. All Retired Reserve members who were removed from active status by board action or operation of law are ineligible for transfer to the Ready Reserve. d. Retired Reserve Soldiers who were removed from active status by operation of law and whose transfer to the Ready Reserve would result in their immediate removal there from by operation of law, are ineligible to transfer to the Ready Reserve. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002738 2 1