ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20170017535 APPLICANT REQUESTS: an upgrade of his U.S. Army Reserve (USAR) general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 that his active duty service was honorable and noteworthy; therefore, his inactive reserve time should be considered as honorable. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 25 November 1966. He was trained in and held the military occupational specialty (MOS) 11F20 (Infantryman Operations and Intelligence Specialist). He was honorably discharged from active duty on 7 November 1967. b. He was appointed as a Reserve commissioned officer of the Army and executed an oath of office with concurrent call to active duty on 8 November 1967. c. He served in Vietnam and attained the grade of first lieutenant. He was honorably released from active duty on 17 August 1969 and transferred to the USAR Control Group (Annual Training). d. On 13 June 1970, the battalion commander documented the applicant’s failure of officer to report to annual training (AT). He stated: * the applicant was assigned to his USAR unit effective 23 May 1970 * the applicant attended drill on 26 May 1970 * he was informed verbally during the battalion formation and specifically at the officer call the dates of scheduled drills * failed to report to scheduled drills on 2 and 9 June 1970 * the command contacted the applicant by phone on 9 June 1970 * failed to report to annual training on 13 June 1970 * the applicant informed the command that he was resigning his commission on 9 June 1970 * a certified letter was mailed to the applicant for an unsatisfactory drill e. On 18 June 1970, the company commander documented (subject: failure of officer to report to annual training (AT) regarding the applicant. He reiterated what was mentioned on the battalion commander's document dated 13 June 1970. f. On 22 June 1970, the applicant wrote a letter requesting that he be absolved of any continuing responsibility to serve his country. The commander requested a board of officers. g. On 8 September 1970, by letter to the applicant, the assistant adjutant stated allegation of professional dereliction was on file at the command. His military record indicated that he intentionally neglected or failed to participate in the required ready reserve training. The allegation seriously questioned his fitness to retain his commission in the USAR. He was informed that a board of officers would be convened under the provisions of Army Regulation (AR) 135-175 (Separation of Officers), to make inquiry into the charge and the appropriate recommendation for separation. He was advised that under AR 135-175, he had the following privileges: * to tender his resignation * to be furnished copies of the board records and other pertinent documents * to appear before the board in person and/or be represented by an appointed military counsel at his own expense h. On 19 September 1970, the applicant responded and stated on page five that he has already tendered his resignation to the adjutant general. i. On 14 December 1970, the applicant was informed that the elimination action under AR 135-175 was initiated to consider his suitability for retention in the Army Reserve. The commanding general directed to constitute a board of officers to consider his case and to make the appropriate recommendation. j. Special Orders Number 9, dated 9 January 1971, appointed a board of officers to determine whether the applicant should be discharged from the Army Reserve for cause. k. The DA Form 1574 (Report of Proceeding by the Investigating Officer) on 14 March 1971 findings states that the applicant intentionally failed to participate satisfactorily in required ready reserve training as outlined in AR 135-90 (Service Obligations, Methods of Fulfillment, and Enforcement Procedures). The board recommend that the applicant be discharged from the USAR, and in light of his personal decorations and past performance of duties recommends a general discharge. l. On 22 July 1971, the elimination action letter was sent to the commanding general, USAR Components Personnel and Administration Center, St. Louis by the assistant adjutant general. m. Special Orders Number 258, dated 15 September 1971, discharged the applicant for professional dereliction (failure to satisfactorily participate) effective 27 August 1971. 4. By Army Regulation 135-175, the existence of one of the following or similar conditions, unless successfully rebutted, authorizes involuntary separation of an officer due to moral or professional dereliction. Officers discharged for any of the following reasons may be furnished an Honorable or General Discharge Certificate, or Other Than Honorable Conditions Discharge. * downward trend in overall performance resulting in an unacceptable record of efficiency or a consistent record of mediocre service indicating the officer has reached the peak of his potential * failure to keep pace or to progress with contemporaries, such as successive promotion failure or a low record of efficiency when compared with other officers of the same grade, branch, and length or service * failure to exercise necessary leadership or command required of an officer of his grade * failure to perform with the technical proficiency required by the grade held * failure to meet standards in a course of instruction at a service school due to academic or leadership deficiencies * failure to properly discharge assignments commensurate with his grade and experience * apathy, defective attitudes, or other character disorders, including inability or unwillingness to expend effort * failure of a dual component member to be recommended for promotion in enlisted status, or to be selected for retention under the active component enlisted qualitative retention program * failure to achieve satisfactory progress after participation in a medically established weight control program 5. Army Regulation 135-90, provides the service obligations and participation requirements. The service obligations incurred and the participation required by officers upon transfer to or appointment in the Army National Guard of the United States (ARNG) and USAR. 6. In reaching its determination, the Board can 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, 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 concluded there was insufficient evidence to show an error or injustice was presented which would warrant a correction to the characterization of service. For that reason, the Board recommended denying the applicant’s request for 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 135-175 (Separation of Officers), (Officer Separations) provides policy, criteria; and procedures for the separation of officers of the ARNG and the USAR, except for officers serving on active duty or active duty training exceeding 90 days. a. States that existence of one of the following or similar conditions, unless successfully rebutted, authorizes involuntary separation of an officer due to moral or professional dereliction. Officers discharged for any of the following reasons may be furnished an Honorable or General Discharge Certificate, or Other Than Honorable Conditions Discharge: discreditable, intentional failure to meet personal financial obligations, mismanagement of personal affairs to the discredit of the service, mismanagement of personal affairs detrimentally affecting the performance of duty of the officer concerned, intentional omission or misstatement of facts in official statements or records, for the purpose of misrepresentation, acts of personal misconduct (including, but not limited to, acts committed while in a drunken or drug-intoxicated state), homosexuality, intentional neglect or failure to: (1) Perform assigned duties, or (2) Participate satisfactorily in required Ready Reserve training. b. Paragraph 1-6b (1) Honorable Discharge Certificate (DD Form 256A). An honorable discharge is a separation from the United States Army with honor. The issue of an honorable discharge is conditioned on proper military behavior and proficient and industrious performance of duty, giving due regard to the grade held and the capabilities of the officer concerned. · c. Paragraph 1-6b (2) General Discharge Certificate (Under Honorable· Conditions) (DD Form 257A). A general discharge is a separation from the United States Army under honorable conditions of an officer whose military record is not sufficiently meritorious to warrant an honorable discharge. · 3. Army Regulation 135-90, (Service Obligations, Methods of Fulfillment, and enforcement Procedures) paragraph 2-2d, for Officer Candidate School (OCS) states ARNGUS, USAR-OCS graduates fulfill their obligations by satisfactorily participating as officer members of the ready reserve for the remaining period of their statutory service obligation and, where appropriate, any contractual obligation incurred. Satisfactory participation after graduation normally will consist of immediate participation with a reserve component unit. Should an assignment to a unit not be possible in an officer status as a result of reorganization or inactivation, satisfactory participation may be accomplished as provided for Reserve Officer Training Corps (ROTC) graduates. As an exception to this provision, a member who serves (3 years active duty prior to attending ARNG OCS will be eligible for transfer to the control group (standby) on the fifth anniversary date of his initial enlistment. ·Active Army OCS graduates are required to serve on active duty as officers for a period of at least 2 years. Upon relief from active duty they are required to serve in the Ready Reserve until the fifth anniversary of their initial enlistment, appointment, or induction into the Armed Forces. 4. 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. ABCMR Record of Proceedings (cont) AR20170017535 5 1