ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20170004897 APPLICANT REQUESTS: correction of his Army National Guard (ARNG) records to delete the reason for his discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * outline and self-authored statement * Texas National Guard (TXARNG) Military Department Letter * Army Board for Correction of Military Records (ABCMR) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) ending 17 September 1982 * NGB Form 22 ending 18 March 1991 * Army Reserve (USAR) Personnel Center Orders D-02-616647 * Texas Adjutant General Department Orders 56-39 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 (ABCMR) 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 he believe his records reflect he failed to report for muster, and was thereafter permanently discharged. The notice of muster was sent to his last known address, an address he had not occupied for years. Evidently, the notice was either not delivered, or not forwarded to his new address. He I served honorably in the TXARNG as both enlisted and as an officer. He never had any negative indication on any of his records, and never had either non-judicial, or judicial, punishment assessed against him for misconduct. To end his service in a manner that he consider a blotch on an otherwise spotless record is an injustice. 3. The applicant provides: a. An outline of his documentation and a self-authored statement that stated in summary his NGB Form 22 discharge him as E-5 listing 1xx E. , TX, as mailing address for his former law office. His NGB 22 ending 18 March 1991, shows his mailing address as . He ceased occupying this residents in March 1984, well before his departure from the TXARNG; therefore, his unit had the correct home and business address, yet chose to send the form to a defunct, former address. b. The Board letter, dated 22 July 2014 to the applicant, which states, he failed to exhaust all administrative remedies available to him. There was no evidence that he submitted his request for correction of your ARNG records to the Texas State Adjutant General and were denied relief. c. TXARNG, Military Department letter, dated 1 December 2016, to the applicant denying his request. d. His DD Form 214 showing his service from 1 July 1971 to 4 August 1972. e. His NGB Form 22 showing his service for the period ending 17 September 1982 as an enlisted service member and showing he was appointed as an officer then later discharged on 18 March 1991. f. TXARNG, Adjutant General’s Department Order dated 20 March 1991. g. USAR Personnel Center Orders , dated 5 February 1996 4. A review of the applicant’s service record shows: a. Having prior service in the Regular Army, he enlisted in the TXARNG on 31 October 1981 and was honorably discharged on 17 September 1982. b. His NGB Form 22 shows the authority and reason as National Guard Regulation (NGR) 635-101 (Efficiency and Physical Fitness Boards), failure to report to muster day. His charter of service is honorable. Item 18 (Remarks) states the applicant was discharged without personal notice for failure to report to muster day. The NGB Form 22 and discharge orders were mailed to officer's [applicant] last known address as shown in item 1. Item #20 (Signature or person being separated) shows that the officer [applicant] was not available for signature. c. He was appointed as an ARNG commissioned officer and executed an oath of office with concurrent call to active duty on 18 September 1982. d. TXARNG published Order , dated 20 March 1991 shows the applicant was relieved from Inactive Ready Reserve National Guard effective 18 March 1991, for failure to report to muster day. e. USAR Personnel Center, published orders , dated 5 February 1996 honorably discharging the applicant from the USAR with an effective date of 5 February 1996, under the provisions of Army Regulation 135-175 (Army National Guard and Army Reserve – Separation of Officers). 5. On 1 December 2016, by letter, the TXARNG stated after consideration, the Texas Adjutant General reviewed and denied his request and informed him to use the memorandum to pursue his relief with the ABCMR. 7. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 8. By regulation, 135-175 provides the policies, criteria, and procedures governing the separation of Reserve officers of the Army. 9. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon the mitigating reason from the applicant within his statement, the Board members determined that it was his responsibility to provide the State Adjutant General with an accurate address for correspondence purposes. Board members noted that is insufficient evidence to support a change. Based upon the failure of the applicant to provide an accurate address, the Board concluded that the characterization of service received at the time of separation was appropriate. 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 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. AR 135-175 (Army National Guard and Army Reserve - Separation of Officers) provides the policies, criteria, and procedures governing the separation of Reserve officers of the Army. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court- martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170004897 5 1