ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 May 2019 DOCKET NUMBER: AR20170004203 APPLICANT REQUESTS: Correction of his record to show the following: * reinstatement into the U.S. Army Reserve (USAR) * drill pay for 16 months of Inactive Duty Training (IDT) drills performed from 26 July 1992 – 26 October 1993 while pending involuntary separation from the USAR * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 20-1, dated 13 February 1991 * Orders Number 21-9, dated 20 February 1991 * Orders Number 30-1 and 30-2, dated 9 April 1991 * DD Form 1614 (Request and Authorization for Department of Defense (DOD) Civilian Permanent Duty Travel), dated 24 February 1992 * DA Forms 2823 (Sworn Statement), dated 19, 21 and 22 October 1993 * DA Forms 1380 (Record of Individual Performance of Reserve Duty Training), dated 26 July 1992, 16 August 1992, 27 September 1992, 11 October 1992, 15 November 1992, 13 December 1992, 17 January 1993, 23 January 1993, 2 and 21 February 1993, 20 March 1993, 17 April 1993, 3 May 1993, 20 June 1993, 14 July 1993, 1 August 1993, 12 September 1993 and 26 October 1993 * Summary of board proceedings, dated 13 October 1993 * Orders Number 141-01, dated 13 December 1993 * Statement authored by Sergeant L- C-, dated 17 August 1994 * Orders Number 307-01, dated 3 November 1995 * Self-authored letter to the President of the U.S. (POTUS), dated 27 October 2014 * Self-authored letter to the USAR Command (USARC), dated 28 April 2017 * Memorandum, Subject: Application for Correction of Military Record, dated 1 August 2017 * FACTS: 1. The applicant states: a. The offense he was charged with and found guilty of by an administrative separation board does not rise to the level of the regulation the Army used to involuntarily separate him from the USAR. Army Regulation (AR) 135-178 (Separation of Enlisted Personnel), paragraph 7-11 (c), misconduct, commission of a serious offense, was the regulation used to involuntarily separate him from the USAR. AR 135-178, paragraph 7-11(c) limits the separation of a Soldier based on misconduct to the commission of a serious offense and the specific circumstances of the offense warrant separation for the same or a closely related offense under the Manual for Courts-Martial (MCM). The MCM, part V, paragraph 1e, defines a minor offense as "an offense which the maximum sentence imposable would not include a dishonorable discharge or confinement for longer than 1 year if tried by general court-martial." b. The sole finding against him which was considered by the separation board majority was that he "intentionally wore the rank and insignia of a master sergeant (MSG)/E-8, when he knew fully well he was not entitled to do so." The separation board finding was the same or closely related to MCM, part IV, paragraph 113, article 134- (wearing unauthorized insignia, decorations, badge, ribbon, device, or lapel button. The maximum sentence is a bad-conduct discharge and confinement for 6 months if tried by general court-martial). c. A comparison among the MCM's definition of a minor offense (MCM, part V, paragraph 1e), the same or a closely related offense under the MCM (MCM, part IV, paragraph 113, article 134) and the findings of the separation board, show that the findings of the separation board was a minor offense. Therefore, AR 135-178, paragraph 7-11(c) cannot be applied to the findings of the separation board because it limits the separation of a Soldier based on misconduct to the commission of a serious offense. d. Additionally, the circumstances of the alleged offense does not warrant separation because there was no evidence presented before the separation board that he had knowledge his promotion orders had been revoked. The board's majority reasoning, as expressed by the board's minority, "The argument was presented as to what the applicant should have known and should have done once he knew certain circumstances, but the proof was never presented." It was respectfully submitted that such a finding was insufficient, as a matter of law, to constitute the commission of a serious offense under the MCM. Moreover, evidence was presented that corroborated the fact that he had no knowledge that his promotion order had been revoked. e. His entitlement to 16 months of IDT pay for the period 25 July 1992 to 26 October 1993 while pending involuntary separation from the USAR is supported by attachments #5, #6-1 through #6-19, #7. Per attachment #7, during the period 25 Jul 1992 to 26 Oct 1993, he was living and working in Perrine, FL due to a DOD civilian permanent change of duty from Memphis, TN to Perrine, FL. He was not provided equal opportunity and fair treatment in regard to the command's (302nd Military Intelligence Company, Memphis, TN) Rescheduled Training (RST) policy as required by AR 600-20 (Army Command Policy), paragraph 6-2. In accordance with AR 140-1 (Army Reserve Mission, Organization and Training), paragraph 3-12c (1) and as verified by attachment #5, the command had a policy of authorizing RST to Soldiers who lived and worked in other states. 2. A review of the applicant’s service records show the following on: * 25 January 1975 – having had prior service in the U.S. Marine Corps, the applicant enlisted in the USAR * 20 February 1991 – Orders Number 21-9, issued by Headquarters, 125th USARC, promoted the applicant from sergeant first class (SFC)/E-7 to MSG * 9 April 1991 – Orders Number 30-2, issued by Headquarters, 125th USARC, revoked Orders Number 21-9 pertaining to the applicant’s promotion to MSG * 16 July 1992 – the applicant’s immediate commander informed him he was flagged pending possible Uniform Code of Military Justice action, and he must stop wearing the rank of MSG and return to his authorized rank of SFC, he was not permitted to transfer from 302nd Military Intelligence Company, Memphis, TN * 5 August 1992 – the applicant requested to be released from the 302nd Military Intelligence Company to the 3220th U.S. Army Garrison, West Palm Beach, FL and a special promotion from SFC to MSG in conjunction with his transfer * 13 September 1992 – by memorandum, the acting immediate commander denied the applicant’s request for transfer based upon him being flagged and completion of an AR 15-6 (Procedures for Investigating Officers and Board of Officers) investigation and the flag could not be transferred * 2 May 1993 – by memorandum, the applicant was informed by his immediate commander he was initiating action to separate him from the USAR for misconduct * 25 May 1993 – the applicant was advised by counsel on the basis of the contemplated separation under the provisions of AR 135-178, chapter 7 and he requested military legal counsel and consideration of his case by a board of officers * 12 September 1993 – the senior commander, 125th Army Reserve Command ordered the applicant’s separation referred to a board of officers * 8 October 1993 – by memorandum, the applicant was informed a board of officers had been appointed and the board would convene on 23 October 1993 * July 1992 – October 1993 – the applicant performed 292 hours of RST with the 324th Combat Support Hospital, Perrine, FL * 13 October 1993 – by memorandum a board of officers was appointed to consider the applicant for separation under the provisions of AR 135-178, paragraph 7-11c (Misconduct/Commission of a Serious Offense) * * 23 October 1993 – a board of officers convened and after hearing deliberations found the applicant did intentionally and improperly wore the rank of MSG when he knew fully well he was not entitled to do so and recommended the applicant receive a general, under honorable conditions discharge * 1 December 1993 – the Staff Judge Advocate reviewed the record of proceedings and found the proceedings were fair and comprehensive and the findings were supported by evidence and legally sufficient to support the board’s recommendation and the senior commander concurred * 13 December 1993 – Orders Number 141-01, issued by Headquarters, 125th USARC, discharged the applicant from the USAR with a general, under honorable conditions discharge, under the authority of AR 135-178 * the applicant is 69 years of age 3. The applicant provides: a. Orders Number 20-1, issued by Headquarters, 125th USARC, reassigning him from 302nd Military Intelligence Company to the USAR Forces (USARF) School. b. Orders Number 30-1, issued by Headquarters, 125th USARC, revoked Orders Number 20-1 and reassigned him to the 302nd Military Intelligence Company. c. DD Form 1614, showing he was reassigned as a DOD employee from the 302nd Military Intelligence Company to the 324th General Hospital as a Staff Operations and Training Specialist. d. DA Forms 2823, providing details of the applicant’s promotion based upon him accepting a position at the 3291st USARF School and him continuing to wear the rank of MSG although he had not accepted the position at the 3291st USARF School, but was unaware of revocation orders, and did not know why he was receiving MSG pay because he did not submit his promotion orders to finance. The authors attest that the issuance of revocation orders had been published but they had to be sent to the applicant e. Orders Number 307-01, issued by Headquarters, 125th USARC, amended Orders Number 141-01 insomuch as changing his characterization of service from general, under honorable conditions to honorable. f. Statement authored by SGT X___- that states in his capacity as the unit clerk for the 302nd Military Intelligence Company he processed RST pay for members of the unit whose home of record were WI, CA, and KY and performed RST with units in their respective states of residence and was documented on DA Form 1379 (USAR Components Unit Record of Reserve Training). a. g. Self-authored letter to the POTUS wherein he is requesting his assistance with being reinstated to the USAR due to errors and violations in the application of an Army regulation. h. Self-authored letter to the USARC wherein he states, he initially submitted this application on 8 July 2015 to the Army Review Boards Agency (ARBA). He received a letter from ARBA, dated 28 November, wherein they stated his application was filed without action and without prejudice pending exhaustion of administrative remedies through the USARC, Fort Bragg, NC. In compliance with ARBA's guidance, he submitted an application for correction of his military record to the USARC, dated 29 December 2016. To date, he had not received a written response from the USARC regarding his application. After submitting his application to the USARC, he received another letter from ARBA, dated 23 March 2017, acknowledging receipt of his application from the USARC. i. Memorandum, Subject: Application for Correction of Military Record wherein a USARC official states in pertinent part, based upon the information presented and the applicable regulations, there was insufficient information to determine if the administrative board proceedings were conducted appropriately. However, in review of the materials available, you were afforded due process rights at the separation hearing. Therefore, there was no justification to negate the separation authority determination. In accordance with Army regulatory guidance at the time of separation for misconduct on 13 December 1993, there were no provisions to allow for retirement in lieu of administrative separation. Consequently, your request for reinstatement in the Army Reserve is beyond their authority. Regarding payment for RST, you admit you were not authorized to attend drills at an alternate location. Payment for duty performed is not warranted. 4. See applicable references below. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence of an error or injustice which would warrant adding additional USAR service credit or reinstating the applicant into the USAR. 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. 5/21/2019 X CHAIRPERSON Signed by: 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. AR 135-178 (Separation of Enlisted Personnel) in effect at the time states: a. Paragraph 2-4, the member will be notified in writing by the immediate commander they are recommending separation, and the commander will cite specific allegations on which the proposed action is based. The member will be afforded the opportunity to consult with counsel, present statements on his/her behalf, and to present the case under the administrative board procedure. b. Paragraph 7-1 prescribes the procedures for separation of enlisted members of the USAR for misconduct by reason of one or more of the following: * minor disciplinary infractions * a pattern of misconduct * commission of a serious offense * conviction by civil authorities c. Paragraph 7-3 states an enlisted member separated for reasons indicated in paragraph 7-1 will normally be furnished a characterization of service of under other than honorable conditions. If warranted by the member’s overall record, a characterization of service of under honorable conditions may be furnished. 2. AR 140-10 (Assignments, Attachments, Details, and Transfers) sets the maximum allowable age as 60 years of age. 3. AR 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records), in effect at the time provides Army policy for USAR training and retirement point credit. Paragraph 3-3 states the DA Form 1380 is used to record IDT by unit members attached to another USAR unit for 89 days or fewer days, non-unit members who are attached for retirement points only in USAR Troop Program Units, ARNG units for training. Unit Soldiers attached to another USAR unit for 89 or fewer days. In such cases the unit of attachment will prepare DA Form 1380 and forward to the unit of assignment for recording attendance on DA Form 1379 (USAR Components Unit Record of Reserve Training). 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the 1. ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.