ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 October 2019 DOCKET NUMBER: AR20170012018 APPLICANT REQUESTS: correction of his military records to show he: * voluntarily relinquished his commission * was not performing below service school standards when he was released from active duty APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: he provides a DD Form 149 (Application for Correction of Military Record). 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: a. His wife recently passed away and he inquired if she was eligible for burial at the San Antonio National Cemetery based upon his brief military service. He received a letter stating she was not and he respects that. The letter stated that he had performed below service school standards. The exit letter he received at the time should be in his record and stated he did not wish to continue in the field artillery (FA). One officer on the board asked him if he wished to attend another military school. The exit letter specifically noted that he was not failing. At the time, he was frustrated because he had spent the time and would have to begin again at a new school. He had a very difficult time during artillery school due to the fact his brother had lost his life in Vietnam as a result of an explosion. Before he was commissioned. b. He received the letter in April 2017 and learned that his record reflected other than what was in his exit letter. Never was it mentioned, either orally or written, that he was failing. The exit letter should be in his record. He lost his copy during a move; however, this is very important to him to have this corrected. 3. Review of the applicant’s military record shows: a. A Standard Form 513 (Clinical Record – Consultation Sheet), dated 10 December 1975, stated he was evaluated for a U.S. Army Reserve (USAR) commission for fitness and determination if any psychological residual from colostomy existed. The examining medical doctor diagnosed him with Hypochondriacal neurosis and found him for fit for commission, with no lifting and pulling limitations. In addition, he strongly suggested the applicant seek psychiatric help for his problem. b. He was appointed in the USAR, FA Branch, as a second lieutenant on 11 March 1976. He was ordered to active duty for training (ADT) to attend the FA Basic Officer Course (FAOBC) at the U.S. Army FA School (USAFSA). He entered active duty on 13 May 1976. c. In a letter, dated 7 May 1976, the applicant’s civilian medical doctor stated the following: * the applicant suffered a perforation of his colon with extensive peritonitis in December 1974 that required a colostomy which was later closed * he recovered from surgery, but had persistent abdominal complaints of pain in the lower abdomen after exercise with the urge to move his bowels even after he had already had a bowel movement * after bowel movements, he had some pain in the rectum that was relieved by a Sitz bath * all of his symptoms seems to be aggravated by running, jumping, or excessive walking and any strenuous exercise or heavy lifting brought on those symptoms * because of those symptoms, the applicant wanted a change to a duty status where that would not be required d. A DA Form 2496 (Disposition Form), dated 28 June 1976, stated the FA Registrar, USAFAS, notified the applicant of the following: * as a result of his academic performance in the FAOBC, Class 13-76, he had attained a non-graduate status for the following reason: failure in the Counterfire and Communication Electronics subcourses: Final Average: Counterfire – 65 percent (%), Communication/Electronics – 67.50% * he had the right to appeal and his appeal would be directed to the Commandant through the Academic Review Panel * the Academic Review Panel would recommend one of the following: * non-graduate (relieved) * turnback * continue * he was advised of his rights and inasmuch as he was a USAR officer, with less than 3 years of commissioned service, his commission could be terminated immediately by the Commanding General, in which event, he would be immediately discharged from the military service e. A DA Form 2496, dated 28 June 1976, stated he acknowledged notification of his non-graduate status and he understood his right to appeal or not to appeal. He elected to appeal. f. A Record of Discussion of the Academic Review Panel, dated 30 June 1976, stated he appeared before the panel and was advised that based on the findings, the panel would make one of the following recommendation to the Commandant in his case: * that he be allowed to continue the course with his present class and to reappear before the panel for final evaluation and determination at the completion of the course * that he be turned back to another class, subject to the administrative and fiscal requirements of such action g. On 2 July 1976, the Academic Review Panel recommended the applicant be declared a non-graduate (relieved) of the FAOBC. h. On 2 July 1976, he acknowledged receipt of the panel’s recommendation and elected to make a statement. In his statement, the applicant stated: * his deficiency in the course did not come about completely from the lack of understanding the material at times, he felt a major part was due to his health * when his problems with not understanding something, he sought help from his instructors and other students in his class * at no time did he neglect his studies as he had always considered training to be serious matter * in 1974, he had an accident that resulted in the rupturing of his colon and required two serious operations; he had a colostomy affixed to him and ever since he constantly had stomach aches and was at times very nervous * he was evaluated by a doctor before he came on active duty or rather before he was commissioned and the doctor stated he would be alright * many times he was unable to study as a result of the pain in his stomach * he became ill in the field, but he still attempted to absorb the instruction * he wished he could request a turnback to complete the OBC, but he was afraid that would not solve his problems and could do more harm * he did not wish to go through the same complications again i. On 2 July 1976, the staff judge advocate determined substantial evidence existed to support the recommendation of the Academic Review Panel and he found no procedural errors that would vitiate those proceedings. j. He was honorably released from ADT on 17 July 1976 and was transferred to the USAR Control Group (Annual Training (AT)). His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 months and 5 days of active service. This form also shows in: * item 9c (Authority and Reason) – N/A * Item 29 (Signature of Person Being Separated) – his signature k. A DA Form 2496, dated 24 August 1976, shows the Chief, Reserve Policy and Plans Division, advised the Chief, Counselling Branch, that the applicant should be discharged from the USAR Control Group (AT) when released from ADT and issued discharge orders. l. Orders Number 09-90116, issued by the Reserve Components Personnel and Administration Center, on 22 September 1976, honorably discharged the applicant from USAR, with an effective date of 17 July 1976. 4.. By regulations: a. AR 600-8-24, any officer of the Active Army may tender a resignation under provisions of chapter 3-5. The date of separation, as specified or directed, will not be changed without prior approval of Headquarters Department of the Army nor can valid separation orders be revoked subsequent to the specified or directed date of separation. b. AR 635-5, instructions for completion of the DD Form 214 stated: * Item 9c – would list the statutory reason and/or authority for separation and the Separation Program Designator (SPD)) Codes * Item 29 – self-explanatory BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon a review of all documentary evidence provided by the applicant and found within the military service record, the Board agreed the separation action and the narrative reason for that separation accurately reflected the facts and circumstances for the separation, and that 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 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 (AR) 600-8-24 (Officer Transfers and Discharges), in effect at the time, prescribed policies and procedures governing the transfer and discharge of Army officer personnel. The regulation stated in: a. Paragraph 3-4 – Resignation under paragraph 3-5, would be forwarded to the Commander, U.S. Army Human Resources Command (AHRC), Alexandria (AHRC- OPD-A), VA 22332–0478. The first forwarding endorsement would contain the following: (1) Recommendation for approval or disapproval and type of discharge to be furnished. If approval was recommended and the officer had not fulfilled the service requirements specified in paragraph 3–5, complete justification would be included. Similarly, recommendations for disapproval would state reasons. (2) Statement that none of the conditions in paragraph 1–11b existed or if any did exist, a complete explanation. b. Paragraph 3-5 – the task, rules, and steps for processing voluntary resignations. It stated any officer on active duty (for more than 90 calendar days) may tender a resignation under this paragraph except when action is pending that could result in resignation for the good of the Service; officer is under a suspension of favorable actions, pending investigation, under charges; or any other unfavorable or derogatory action is pending. Normally, resignations would not be accepted unless on the requested date of separation the officer had fulfilled the service obligation. (1) The date of separation, as specified or directed, would not be changed without prior approval of Headquarters, Department of the Army, nor could valid separation orders be revoked subsequent to the specified or directed date of separation. (2) An officer must serve in the Armed Forces until completion of statutory military service obligations (MSO). An officer had an 8–year MSO, to waive an officer’s MOS, the Assistant Secretary of the Army (Manpower and Reserve Affairs) must find that the officer had no potential for service under conditions of full mobilization. (3) HRC–Alexandria (AHRC–OPD–A) would issue separation instructions on approved requests to the appropriate personnel service company or military personnel division. If disapproved, HRC-Alexandria would notify the officer through the officer’s chain of command. An officer who submitted an unqualified resignation accepted by HRC will receive an Honorable discharge or a general discharge based on their record of service. 3. AR 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. The regulation stated: * Item 9c (Authority and Reason) – would list the statutory reason and/or authority for separation and the Separation Program Designator * Item 29 (Signature of Person Being Separated) – self-explanatory //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170012018 6 1