ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 October 2019 DOCKET NUMBER: AR20170013467 APPLICANT REQUESTS: * reinstate in the United States Army Reserves (USAR) in the rank of warrant officer one (WO1) * back pay for WO1 (with no promotions), with years of service consistent with what his time in service would have been at different points from 5 April 2007 until present (i.e. 2017) * in the alternative if not reinstated, back pay for WO1 from 5 April 2007 until present (i.e. 2017) * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * enclosure 2, officer candidate school (OCS) recommendation * enclosure 3, WO recommendation * enclosure 1, memorandum of achievement * enclosure 4, DA Form 1059 (Service School Academic Evaluation Report) * enclosures 5-7, three red cross messages * enclosure 8, orders 07-095-00001, USAR discharge order * enclosure 9, freedom of information office * DA Form 5016 (Chronological Statement of Retirement Points) 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 in April 2007, he was wrongfully discharged by the U.S. Army Reserve Command (RC). He would like to continue his training and service as a WO within the military intelligence branch in the USAR. He was deprived of serving in the military for the past 10 years due to this injustice. a. Based on the WO pay scale found in the military pay chart for 2017 (http://www.militaryrates.com/military-pay-charts-w1 w5 2017), and assuming a rank of WO1 (with no promotions), with years of service consistent with what his time in service would have been at different points during the past 10 years and, using a prorated calculation for the year 2017, he calculates that the total Reserve back pay that he was deprived of for the period in question amounts to $37,307.22 (this sum is the aggregate of the following sums calculated for the following years: 2007 ($2951.78), 2008 ($2951.78), 2009 ($3269.22), 2010 ($3354.74), 2011 ($3535.40), 2012 ($3535.40), 2013 ($3738.17), 2014 ($3738.17), 2015 ($4063.62), 2016 ($4063.62), and 2017 (prorated) ($2105.32)). b. His performance as a noncommissioned officer interrogator from 1995 to 2005 was rated outstanding (see enclosure 1), and he was recommended for both OCS and WO candidate school (WOCS) (see enclosures 2 and 3). He decided to apply for WOCS and was accepted. He completed the first phase of the WO basic course (WOBC) in late November 2005 and was given another honorable discharge at the end of that active duty period (see enclosure 4). c. On 18 January 2007, he began the HUMINT Technician Track Course at Fort Huachuca, AZ. He was progressing well through this course when he received a red Cross message on 16 February 2007, stating that his elderly mother was deathly ill in her home country of Bolivia (see enclosure 5). He immediately informed his chain of command at the school and requested to be released from the course so that he could help his family and be with his mother, but his request was denied by Lieutenant Colonel X___, his battalion commander at the school. Subsequently, while still in the course, he received a second Red Cross message on 24 February 2007, emphasizing that his mother had a very low life expectancy due to her condition (see enclosure 6). He pleaded with his chain of command, but his request to leave the course was still denied. Finally, on 26 February 2007, he received a third Red Cross message, stating that his mother's "life expectancy is an issue" (see enclosure 7). Although there was less than a week of instruction left and he had passed all requirements in the course up to that point, he was desperate to be by the side of his dying mother. He begged his chain of command to let him go, showing them the Red Cross messages and explaining the dire circumstances and how it was affecting him. He told them he would gladly retake the entire course again, even though he had already passed the great majority of it, if they would allow him to leave immediately to go to his mother. At that point, they told him he was free to go but he would be flunked. He immediately traveled to Bolivia to be with his mother and his two youngest children. d. He remained in Bolivia, assisting with his mother and caring for his children, until his mother's condition stabilized in June 2007. In late May or early June 2007, he received a letter in Bolivia from his Reserve unit, 2184th Military Battalion at Fort McCoy, WI with official looking orders enclosed, dated 5 April 2007, purporting to be from Headquarters, USAR Command at Fort McPherson, GA, discharging him from the USAR with an "under honorable conditions (general)" discharge (see enclosure 8). This shocked and disturbed him, he called his RC unit at Fort McCoy, WI, to ask about it. However, they were unable to tell him anything about it or supply him with an official DD Form 214 (Certificate of Release or Discharge from Active Duty) upgrading his under honorable conditions (general) discharge to honorable reflecting that discharge characterization (i.e. "general") for that period of service, which he would need in order to contest the characterization of that discharge and request an upgrade. e. Through much recent coordination with the National Personnel Records Center and the Army Reserve Component (see enclosure 9), his attorney and himself were finally able to determine definitively, when they met on 29 November 2016, that there is, in fact, no DD Form 214 in existence that reflects his service during the time in question, or during any other time, as lower than purely "honorable" in nature (i.e., there is no record of him ever receiving a "general" discharge). They also confirmed that there are no records in the Army system that would support the validity of the orders dated 5 April 2007 that he received in Bolivia, purporting to be from Fort McPherson. 3. The applicant provides: a. Enclosure 2, OCS recommendation from Major General X___ X___, dated 9 January 1992, states the [applicant] has displayed the traits and potential necessary for an officer in today's rapidly changing Army. He is a hard-working, motivated Soldier dedicated to mission accomplishment and team play. b. Enclosure 3, WO recommendation from Major X___ X___, dated 28 January 2004, states the [applicant] demonstrates the intellectual ability, professionalism, initiative, and dedication to be an excellent warrant officer. c. Enclosure 1, memorandum of achievement from Brigadier General X___ X__, dated 18 August 2004, states “You are commended for distinguishing yourself as an outstanding instructor. You can be proud of your personal and professional development. Your performance epitomizes the standard of excellence we are seeking at the Intelligence Center.” d. Enclosure 4, DA Form 1059, dated 30 November 2005, shows the applicant completed phase I of the Military Intelligence WOBC from 24 October to 30 November 2005. e. Enclosures 5, the applicant received a Red Cross message on 16 February 2007, stating his mother was admitted to a special care center with respiratory difficulty secondary to coronary pulmonary and systemic arterial hypertension. Life expectancy was not provided. f. Enclosures 6, the applicant received a second red cross message on 24 February 2007, stating massive vascular accident and low life expectancy. g. Enclosures, the applicant received a third red cross message on 26 February 2007, stating his mother illness, massive cerebral vascular accident, condition unstable and her life expectancy was an issue. h. Enclosure 8, orders 07-095-00001, dated 5 April 2006, discharged from the USAR, as a WO1 under the provisions of AR 135-175 (Separation of Officers) with an under honorable conditions (general) discharge. i. Enclosure 9, freedom of information office letter, dated 27 January 2016, from the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Bliss, KY states records the applicant requested could not be found. j. DA Form 5016, dated 27 October 2016, shows his ending date in the USAR was 6 May 2007. His rank shows as WO1. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 18 May 1989 as an enlisted Soldier. b. On 21 June 1995, he was honorably released from active duty for unsatisfactory performance and transferred to the USAR Control Group (Reinforcement), Army Reserve Personnel Center, St. Louis, MO. c. On 11 March 1997, he was honorably discharged from the USAR. d. He enlisted in the Army National Guard on 6 August 1997. His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), shows he was honorably discharged on 12 December 2000. He then enlisted in the USAR on 28 December 2000. d. He was promoted to staff sergeant on 3 November 2003. His service record is void of him executing an oath and being appointed as a WO1. e. DA Form 1059, dated 16 April 2006, shows he was administratively released from the HUMINT Collection Technician (351M) Certification course at the U.S. Army Intelligence Center and Fort Huachuca, AZ for compassionate reasons prior to course completion and prior to his military occupational specialty certification. He was in this course from 6 March to 18 April 2006. 5. By regulation applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. By regulation, 135-175, chapter 2 states an officer will be involuntarily separated without board action when the member submits a resignation in lieu of involuntary separation proceedings and the resignation is accepted by Headquarters, Department of the Army has less than 3 years commissioned service and the reason for separation is because of failure to meet the standards of a service school while attending a basic or detailed branch course due to academic or leadership deficiencies or for disciplinary reasons; or for an officer with less than three years of service since accepting appointment, is being processed for separation for not meeting medical fitness standards at the time of appointment. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also found that relief was not warranted. Board members noted that appointments of commissioned and warrant officers are performed by the President, delegated to the Secretary of Defense. The applicant was never tendered an appointment as a WO or executed an oath of office to that grade. As he was never tendered an appointment, there is nothing to reinstate, and as he never held the rank of WO, there is no reason to pay him at hat grade. If he desires to enter the service as a commissioned or a warrant officer, he may reapply to any of the Services for consideration of his appointment. 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 135-175 (Separations of Officers), in effect at the time, prescribes the policies, standards, and procedures governing the separation of Army National Guard of the United States and Reserve officers of the Army. Chapter 2 of this regulation prescribes the criteria and procedures governing the involuntary separation of Reserve officers of the Army when their retention is not in the best interest of the service. An officer will be involuntarily separated without board action when the member submits a resignation in lieu of involuntary separation proceedings and the resignation is accepted by Headquarters, Department of the Army has less than 3 years commissioned service and the reason for separation is because of failure to meet the standards of a service school while attending a basic or detailed branch course due to academic or leadership deficiencies or for disciplinary reasons; or for an officer with less than three years of service since accepting appointment, is being processed for separation for not meeting medical fitness standards at the time of appointment. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170013467 6 1