ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 October 2019 DOCKET NUMBER: AR20190006940 APPLICANT REQUESTS: The applicant requests an upgrade of his general under honorable conditions discharge from the U.S. Army Reserve (USAR) to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) letter, dated 3 April 2019 * Letter Orders 5-96, dated 10 May 1965 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for period ending 22 February 1958 * Seven Department of the Army (DA) Annual or Terminal 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 he is requesting an upgrade in order to secure a Certificate of Eligibility for Loan Guaranty Benefits. 3. The applicant’s DA Form 61 (Application for Appointment) shows on 4 February 1957, the applicant applied to be a Reserve Commissioned Officer in the Army Reserve and was scheduled to graduate on 9 June 1957. The DA Form 235 (Recommendation for Appointment of ROTC (Reserve Officer Training Corps) Graduate as a Reserve Commissioned Officer of the Army), dated 4 February 1957, shows he was an ROTC cadet at the time of the recommendation. On 18 February 1957 he was ordered to active duty for training (ACDUTRA) for a period of 6 months. 4. On 2 August 1957, at the age of 22 years old, the applicant was appointed as a Reserve Commissioned Officer of the Army. On the same date he executed the oath of office and signed a DA Form 1609 (Statement Acknowledging Obligation for Service). On 23 August 1957, he entered active duty to attend the officer basic course. 5. On 10 October 1957, the applicant requested specialization in the Research and Development Career Field. On 6 February 1958 he was designated as an Atomic Energy Specialist. On 22 February 1958, he was honorably released from active duty (REFRAD) and transferred to the USAR, Idaho Military District, ID. 6. His record contains six Army Reserve Officer Evaluation Reports from 28 February 1958 to 9 August 1963, which included his rating and endorsing officers’ evaluations and recommendations, his promotion potential, his overall value as an officer in the Reserve program, recommended assignments for further training, unit assemblies scheduled, number of assemblies attended, number of days of ACDUTRA completed, and the reason for the report. a. Report dated 27 February 1958 was rendered due to being Released from Active Duty (REFRAD) for training. Reserve Duty Training is not shown was not applicable. It provides the applicant was mature beyond his years and experience; he was firm and dependable, neat appearance; assumes responsibility; works until completion. He exceeded standards and would make a fine officer. b. Report dated 10 July 1960 was rendered for REFRAD; specifically completion of two weeks of active duty for training. Reserve Duty Training and scheduled assemblies are void of an entry. The report provides he could improve on his assertiveness, assurance and manner of dress. c. Report dated 1 October 1960 was rendered for change of rater purposes. It covers his aforementioned 2 week active duty period and shows he completed 16 of 17 scheduled unit assemblies. His rater indicated the applicant was attentive to duty during drills. He has excellent ideas, but lacks the time or force to put them into action. His civilian employments calls on his extra time quite heavily. b. Report from 1 December 1960 to 30 November 1961 shows he completed 47 out of 48 scheduled assemblies, in addition to reserve meetings and 15 days of ACDUTRA. The applicant was intelligent with a keen sense of responsibility and organization. He was an excellent instructor and leader. "[The applicant's] biggest problem is that his civilian employment (editor of a newspaper) takes most of his time, and he does not always have sufficient time to undertake unit functions required away from reserve meetings. He has enrolled in the Transportation Career Officers career course and has a good attendance record. He would be an exceptional officer if on active duty with full time to devote to his employment…. would also be a superior commander of a non- tactical unit." The officer had great promotion potential and was an asset to the unit and to the reserve program. c. His report from 1 December 1961 to 30 November 1962 shows he attended all 48 scheduled assemblies, he was valuable to the Reserve Program, highly intelligent with the essentials to be an excellent leader. He doesn't perform to the fullest extent possible, mainly because he lives some forty miles away from the rest of his unit. He would do an outstanding job on active duty where he did not have to worry about his civilian employment. He was not able to perform to his best ability due to the distance he lives and the fact that he is quite preoccupied with his civilian job. His attendance at unit meetings has been perfect and he attended drills regularly. d. 1 December 1982 to 15 March 1963 he received a report due to the unit [272nd Transportation Company, Tacoma Subsector Command, X U.S. Army Corps, Sixth U.S. Army] inactivating provides he attended 11 of 17 assemblies schedules. He demonstrated an intelligence which few people possess. Has extreme confidence in most areas, exception being in fields of troop formations and drills and ceremonies. He has difficulty attending assemblies because of his civilian employment as a newspaper editor. He is a definite asset when he is in attendance. 7. The applicant requested to enroll in extension courses in the Transportation Branch Career and on 12 September 1961, the applicant’s request was approved. The approval memorandum stated that for Reserve officers not on active duty, one retirement point was awarded for each three hours of extension work completed. 8. By memorandum, dated 15 March 1963, the Assistant Adjutant General, Headquarters, 10th U.S. Army Corps, Fort Lawton, Washington, notified the applicant that he was currently assigned. An officer member of the Annual Training Control Group was required to earn 54 points during each retirement year and listed how the points may be earned: * Fifteen points are awarded gratuitously for membership in the Ready Reserve. * Performance of 15 days active duty for training annually, when ordered. * Twenty-four points must be earned by participation in Reserve duty training, in one or combination of the following: * One point is credited for each period authorized Reserve duty which meets certain specified requirements * One point is credited for each three credit hours earned by participation in on Army extension course program 9. On 18 March 1963, the applicant acknowledged his assignment. He stated that he was on a leave of absence from his last assignment at the time of his reassignment to the Control Group. He desired to remain on leave until the end of the month. 10. On 15 April 1963, the applicant requested that his 15 days of annual active duty training requirement be waived for business and personal reasons. He stated: a. The publishing company in which he was employed planned to occupy a new building site and it would require his attention and presence. At the time, the company was expanding into an additional publication which would require more of his time on company business, and his wife was expecting a child in the mid-part of June 1963. b. He felt that he was obligated to his business and his family and it was justification for a summer camp waiver. If his transfer from Tacoma, due to deactivation of his former reserve unit, would have come earlier, he would have properly arranged a time which would not have conflicted with his responsibilities. (1) The applicant submitted a letter from his publisher at the company to support his request for a summer camp waiver. He indicated that the applicant was his managing editor and it was necessary to have the applicant on the job to prepare to occupy the new building and get their new publications off the ground. (2) On 17 May 1963, the Adjutant General (AG) notified the applicant that waivers for active duty training was granted only by the Department of the Army (DA) based on extreme hardship and advised the applicant to submit documentation to support his request. He also notified the applicant that he was scheduled for training during 14 July 1963 – 27 July 1963. On 28 May 1963, the applicant responded by reiterating the reasons for his request for a waiver and that he was not asking for a complete waiver because he would be available in September or October 1963. (3) The AG responded to the applicant’s letter, dated 28 May 1963, and reminded the applicant of his obligations and the fact that the applicant voluntarily incurred the obligation to perform 17 days active duty for training annually and acknowledged this obligation upon acceptance of appointment in the USAR. Because this training was within his retirement year, 2 August 1962 – 3 August 1963, the applicant was requesting a complete waiver. He stated that the applicant was required to attend the training scheduled 14 July 1963 – 27 July 1963. 11. On 21 June 1963, the applicant’s enrollment in the extension course was cancelled for failure to successfully complete the minimum established requirements. 12. On 3 April 1964, the applicant’s request for orders was denied by the AG, stating the form pertaining to the applicant was returned, not favorably considered. Records indicated the officer had been preselected for ANACDUTRA 1964. His records contains an Active Duty Report which shows he entered active duty on 13 June 1964 and his tour of duty terminated on 17 June 1964. 13. On 9 February 1965, the applicant was recommended for elimination action for failure to earn the minimum points required. His records indicated that he earned 30 points for retirement year ending 1 August 1964, which included the 15 points for membership. He had a reserve obligation until 1 August 1965. 14. On 16 February 1965, the applicant was notified of the contemplated action against him under the provisions of Army Regulation (AR) 135-175 (Reserve Components – Separation of Officers), paragraph 13i(2), intentional neglect or failure to participate satisfactorily in required Ready Reserve training as outlined in AR 135-90 (Reserve Components – Service Obligations, Methods of Fulfillment, and Enforcement Procedures), based on his failure to earn the minimum points required of an officer assigned to the Annual Training Control Group. 15. The applicant acknowledged of the contemplated action against him, elected to have his case heard before a board of officers, elected to submit statements in his own behalf, and not to tender his resignation in lieu of board action. 16. On 8 March 1965, the applicant was referred to an officer elimination board. On 6 April 1965, the applicant was notified to appear before the board scheduled to convene on 14 April 1965. 17. On 14 April 1965, the elimination board convened. The summary of the board proceedings stated: a. The record reflected a total of 33 retirement points earned by the respondent during the period of 2 August 1962 to 1 August 1963. The applicant contended that the record was inaccurate due to the omission of credit for his attendance at ANACDUTRA during the period of the report, which would have increased the total retirement points to 48 for the retirement year. A search of the records revealed the applicant was ordered to ANACDUTRA during the period 8 July 1963 – 22 July 1963 by proper authority and an entry was made on his DA Form 66 (Officer Qualification Record) indicating that the duty was performed [The DA Form 66 is not available in the available records]. It was noted by the board that the additional 15 points for ANACDUTRA period would not have been sufficient for a satisfactory retirement year. The applicant also acknowledged this fact. b. The record reflected a total of 30 points earned by the applicant during the period 2 August 1963 to 1 August 1964. The board noted that the total points earned were insufficient for a satisfactory year. The elimination board found: * The applicant was aware of his obligation of service as a Reserve officer * He had been properly notified of the Ready Reserve training requirements while assigned to the Annual Training Control Group * He earned less than the minimum required points during his retirement years ending August 1963 and 1964, and that no significant effort had been made to meet the requirement * His failure to participate satisfactorily as a Reserve officer in Ready Reserve training as outlined in AR 135-90 was sufficient reason to require his elimination as provided by AR 135-175, paragraph 13i(2) b. The elimination board recommended that the applicant be discharged from the USAR and issued a General Discharge Certificate for professional dereliction as provided under AR 135-175. On 23 April 1965, the AG signed for the commander and concurred with the board’s recommendation. 18. On 10 May 1965, he was discharged accordingly. His service was characterized as under honorable conditions under the provisions of AR 135-175, paragraph 13i(2) and he was issued a General Discharge Certificate (DD Form 57A). 19. The applicant provides: * Department of Veterans Affairs (VA) letter, dated 3 April 2019, notifying the applicant that a Reserve Component and National Guard member must receive an honorable discharge to be eligible for a Certificate of Eligibility for Loan Guaranty Benefits * Letter Orders 5-96, dated 10 May 1965, indicating the applicant is to be discharged from the Army Reserve with a general discharge, effective 10 May 1965 * DD Form 214 for period ending 22 February 1958, showing he was honorably REFRAD * Seven DA Annual or Terminal Statements of Retirement Points showing he earned the following retirement points for the year from: * 2 August 1957 to 1 August 1956: 199 points * 2 August 1958 to 1 August 1959: 32 points * 2 August 1959 to 1 August 1960: 35 points * 2 August 1960 to 1 August 1961: 78 points * 2 August 1961 to 1 August 1962: 53 points * 2 August 1962 to 1 August 1963: 33 points * 2 August 1963 to 1 August 1964: 30 points 20. The applicant states he is requesting an upgrade in order to secure a Certificate of Eligibility for Loan Guaranty Benefits. His record shows he was an ROTC graduate, appointed as a Reserve Commissioned Officer at the age of 22 years old. He was an active Reservist from the time of commission through March 1963, at which time his unit was inactivated and he was transferred to the Annual Training Control Group which is now known as the IRR. The available evidence shows while an active reservist he attended scheduled assemblies and active duty for training. Although he was defined as an excellent leader and an asset to the Reserve Program; his last few evaluations stated he was limited in performance aspects due his home being far from the unit and his civilian employment (Publishing/Editor) being demanding during active duty and weekend training, as well as, his time when not in training. The applicant underwent an elimination board due to not meeting his point's requirements in 1963 and 1964. a. His record shows his unit deactivated in March 1963 resulting in him being assigned to the Annual Control Group. The elimination board stated he made no significant effort to meet the requirements for training resulting in him being separated with an under honorable conditions (general) characterization of service. Based on the available evidence there was clearly error and administrative irregularity introduced that may have alleviated the applicant going before an elimination board and/or could have resulted in an honorable characterization of service. (1) AR 135-175 stated an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer. Paragraph 13, moral and professional dereliction, subparagraph 13i(2) prescribed intentional neglect or failure to participate satisfactorily in required Ready Reserve training outlined in AR 135-90. A general will normally be issued in cases involving moral or professional dereliction. AR 135-90 states, normally, under· these circumstances officers should be considered having unsatisfactorily participated. Since under these circumstances no discharge other than honorable may be granted, to discharge this individual merely releases him from any obligation short of priority induction. (a) In regards to his retirement year ending 1 August 1963, although the board stated there was no significant effort made on behalf of the applicant to meet his training requirements the available evidence shows otherwise. Through no fault of the applicant his unit deactivated and he was transferred to the Annual Training control group. Mid-march 1963 he received a letter from the adjutant identifying performance requirements, processes and corps commander information and within 3 days of receipt, the applicant immediately and responsibly followed the guidance provided his corps commander with his current status and plans in place concerning obtaining a valid vacancy. In April 1963, the applicant was proactive in requesting his ANACDUTRA be waived prior to orders being published in order to alleviate undue hardship. In addition to his written efforts, the applicant provided a signed affidavit from his civilian employment and reached out a second time clarify he was requesting a waiver, not separation for extreme hardship reasons. Aside from his wife's expected delivery date, he was an Editor and in charge of operations of publication with a publishing company and due to the inactivation there was not sufficient time to coordinate his absence with his publication companies relocation and expansion plans from June through July. He requested a personal interview and advised the owner and publisher of his newspaper intended to contact the Army personally concerning the validity of the employment conflict. (b) In regards to his retirement year ending 1 August 1964; his record shows he requested an extension to complete his course which would have resulted in accumulated training points; however, his request was denied. (2) AR 135-90 states the corps commander is responsible for implementing enforcement provisions to include delays in orders to 45 days ACDUTRA may be granted for educational, compassionate, hardship, or other valid reasons beyond the officer's control. Excused absence from ANACTDUTRA with assigned unit may be made up by comparable ACDUTRA in an attached status to another Reserve Component unit. If assigned to USAR Control Group (Annual Training), performance of 15 days of ANACDUTRA when so directed. (a) In regards to his retirement year ending 1 August 1963, the adjutant's response in May to the applicant's initial request for a waiver was incorrect in advising the applicant his request would require Department of the Army approval. Regulation states if assigned to the Annual Training control group performance of 15 days ANACDUTRA is required "when so directed" and the corps commander is the responsible authority to include granting delays or other alternate options; "when so directed" implied there was an alternative to having to mandatorily performing ANACDUTRA. Additionally, the adjutant denied the request. The regulation is void of directives that indicate the corps commander approval is delegated to the adjutant. (b) In regard to his retirement year ending 1 August 1964, the applicant completed his ANACDUTRA; however, it is reasonable to believe the applicant did not request an exception or waiver of performance requirements due to his extension request being denied, being informed of the AR 15-6 investigation and choosing not to resign but instead appear before an elimination board. 21. The available evidence shows while assigned to an active reserve unit it is reasonable to believe the applicant was potentially aware of his training requirement dates and able to plan and coordinate to alleviate undue hardship which resulted in his satisfactory participation and meeting his performance requirements for six evaluated periods from 1953 to 15 March 1963. Difficulty in meeting performance requirements surfaced when he unit was deactivated and he was subjected to reporting for unscheduled training which would have resulted in undue hardship through no fault of the applicant. The elimination board was privy to his records, performance history and conflict during 1963 and 1964, as well as his strong desire to maintain his reserve membership and have the control group work with him in performance requirements until he could find a unit of assignment. 22. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the inactivation of his unit and requirements for unscheduled training, his actions to effect the change in units, his request for extension to complete required periods of duty, the results of the elimination board, his reason for separation and the character of service he was assigned. The Board found that the applicant had an opportunity to resign, but did not. Based on his prior Honorable record of service, the circumstances of his discharge and a preponderance of evidence, the Board determined that the character of service the applicant received at separation was too harsh. The Board determined that clemency applies and an upgrade to the applicant’s discharge was appropriate. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Headquarters, Sixth United States Army, Letter Orders 5-96 dated 10 May 1965, SUBJECT: Discharge from United States Army Reserve to reflect in Type Discharge: “Honorable – Defense Form 256A (Honorable Discharge Certificate)” vice “General – Defense Form 257A (General Discharge Certificate)” and issue the applicant an Honorable Discharge Certificate. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 (AR) 135-175 (Reserve Components – Separation of Officers), in effect at the time, prescribed policies, criteria, and procedures governing the separation of Reserve officers of the Army. a. An officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer. b. Paragraph 13, moral and professional dereliction, subparagraph 13i(2) prescribed intentional neglect or failure to participate satisfactorily in required Ready Reserve training outlined in AR 135-90 (Reserve Components – Service Obligations, Methods of Fulfillment, and Enforcement Procedures). A general will normally be issued in cases involving moral or professional dereliction. 3. AR 135-90 (Reserve Components – Service Obligations, Methods of Fulfillment, and Enforcement Procedures), in effect at the time, defined the various service obligations incurred under the Universal Military Training and Service Act (UTMS) (62 Statute 64), as amended (Title 50 U.S. Code) referred to as UMTS Act, and prescribed methods by which they were satisfied. It described the Ready Reserve participation requirements under the Armed Forces Reserve Act (AFRA) of 1955, located in Titles 10 and 50 U.S. Code, referred to as AFRA and RFA. It described the requirements established by UMTS Act and AFRA and enforcement procedures for use in case of failure of members of the Reserve Components of the Army to satisfactorily participate in required Ready Reserve training. Satisfactory participation, specific to the applicant, except at otherwise specifically prescribed, means one of the following as appropriate: a. Attendance and satisfactory participation at not less than 90 percent of units scheduled drills and training periods during the members retirement year. b. Absences from scheduled training, drills or annual active duty for training (ANACDUCTRA) may be excused when caused by sickness, injury, emergency, or other circumstances beyond the member's control and substantiated by appropriate affidavits or certified by a doctor or medical officer. c. Excused absence from ANACTDUTRA with assigned unit may be made up by comparable ACDUTRA in an attached status to another Reserve Component unit. If assigned to USAR Control Group (Annual Training), performance of 15 days of ANACDUTRA when so directed. d. ROTC officers serving 6 months ACDUTRA will be required to satisfactorily participate in Ready Reserve training (Unit and/or control group) until the eighth anniversary date of appointment. (1) For ROTC graduates who incur a service obligation subsequent to August 1955 and have serve the required period of active duty or 6 months of ACDUTRA, consists of immediate Reserve training participation unless granted a delay therefrom by the appropriate corps or overseas area commander concerned. Delays so granted will normally not exceed 90 days except in unusual circumstances. (2) Reserve Officer Training Corps (ROTC) commissioned officers who are members of USAR Control Group (Annual Training), performance of 15 days ANACDUTRA and, in addition thereto, earning 24 retirement points each year by voluntary participation in authorized training program (i.e., 15 points for ANACDUTRA, 24 points for participation in authorized training program, and 15 gratuitous points equals the required 54 annual retirement points). Gratuitous points for membership in an active status will not be creditable toward the required 24 points. (3) For the individual who fails to participate satisfactorily in unit training and is, therefore, ordered without his consent to perform 45 days ACDUTRA, performance of the 45 days ACDUTRA will be accepted as satisfactory participation up to the date of completion of such tour. e. Individuals who fail in a year to earn 24 retirement points by voluntary participation in an a authorized training· program as defined in AR 140-30 and, in addition, to attend 15 days of ANACDUTRA when so directed will, if in the best interest of the Service, result in the deferred officer being reported for induction and discharge action initiated as prescribed in 140-175. Normally, under· these circumstances officers should be considered having unsatisfactorily participated, and action under the provisions of Paragraph 7l(2) is appropriate. Since under these circumstances no discharge other than honorable may be granted, to discharge this individual merely releases him from any obligation short of priority induction. For failure to perform 15 days ANACDUTRA when directed, see Paragraph 7 b and d. f. Paragraph 7b states Failure to satisfactory participate. For fail in any year to satisfactorily participate in for which he will receive pay (pay-drill ANACDUTRA status), such a Reserve of the Army, without his consent, may be ordered to perform 45 days ACDUTRA. If the failure occurs during the final year of the individual's obligatory membership in the Ready Reserve, providing sufficient service obligation remains, Ready Reserve status will extended for such time, not to exceed 6 months, may be required for the performance of such additional ACDUTRA. This extension cannot exceed e expiration date of his statutory service obligation If the reservist goes AWOL prior to completion of the 45 days ACDUTRA tour and remain ·nan AWOL status until after the termination date specified in his orders, he may again, without the officer's consent, be ordered to ACDUTRA to complete the remaining portion of his 45-day ACDUTRA tour. g. paragraph 7d (Implementing enforcement provision) Corps or overseas area commanders (USAR) are responsible for implementing enforcement provisions and establishing proceed pertaining thereto in consonance with the instructions in (1) and (2) below: (1) Insure that all reasonable measures are taken to persuade the individual involved to participate satisfactorily. (2) Apply the enforcement provisions promptly. However, delays in orders to 45 days ACDUTRA may be granted for educational, compassionate, hardship, or other valid reasons. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. ABCMR Record of Proceedings (cont) AR20190006940 13 1