BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20150000894 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his under other than honorable conditions discharge from the U.S. Army Reserve (USAR) be corrected to honorable.

2.  The applicant states the under other than honorable conditions discharge was not approved by a board of officers as required by Army Regulation 135-175, paragraph 1-13(f)(2).  He resigned and did not consent to an under other than honorable conditions discharge under Army Regulation 135-175, paragraph 
1-13(f)(3).  Army Regulation 135-175, paragraph 6-18 requires that an Honorable Discharge Certificate be issued.

3.  The applicant provides Headquarters, USAR Command, Atlanta, GA Orders 97-168-004, dated 17 June 1997.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  He served in the Regular Army from 1 February 1978 - 30 January 1981.  His service was characterized as honorable.

3.  He served in the Washington Army National Guard (WAARNG) in an enlisted status from 1 April 1982 - 23 July 1983.  His service was characterized as honorable.  His rank at the time of discharge was staff sergeant (SSG).

4.  On 24 July 1983, he was commissioned a second lieutenant in the WAARNG. On 16 July 1993, he was separated from the WAARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  His service was characterized as honorable.

5.  On 4 February 1994, he was commissioned as captain in the WAARNG.  On 10 February 1995, he was separated from the WAARNG and transferred to the USAR Control Group (Reinforcement).  His service was characterized as honorable.

6.  On 6 April 1995, he was transferred from the USAR Control Group (Reinforcement) to the 174th Combat Support Group, Seattle, WA.

7.  The circumstances concerning the applicant's resignation in lieu of involuntary separation are not available for review.  His letter of resignation in lieu of involuntary separation was not available.  His separation package is not available for review.

8.  On 1 November 1996, he enlisted in the WAARNG in pay grade E-5.  

9.  A memorandum, dated 25 April 1997, from the U.S. Army Reserve Personnel Center, St. Louis, MO approved the applicant's resignation in lieu of involuntary separation.  He was to be issued an Under Other Than Honorable Conditions Discharge from the USAR on 17 June 1997.

10.  Headquarters, USAR Command, Atlanta, GA Orders 97-168-004, dated 
17 June 1997, discharged the applicant from the USAR effective 17 June 1997 with an under other than honorable conditions discharge.  All USAR and Army of the United States appointments were terminated.

11.  On 17 March 2000, he was notified he had completed the required years of service to be eligible for retired pay upon application at age 60 (20-year letter).

12.  Headquarters, 181st Support Battalion, WAARNG Orders 19-3, dated 
14 October 2001, reduced the applicant from SSG to specialist effective 
14 October 2001.  The reason shown on the orders is misconduct/Article 15 proceedings.

13.  On 1 November 2001, he was discharged from the WAARNG and transferred to the USAR Control Group (Retired).

14.  Army Regulation 135-175 (Separation of Officers) prescribes the policies, criteria, and procedures governing the separation of Reserve officer of the Army.

   a.  Paragraph 1-13(f) states that Title 10, U.S. Code, section 1163(c) precludes the separation of an officer for cause under conditions other than honorable unless discharged under conditions other than honorable, pursuant to:
   
   (1)  Approved sentence of a court-martial.
   
   (2)  Approved findings of a board of officers convened by competent 
authority.
   
   (3)  Officer concerned waives such board proceedings and consents to 
discharge under conditions other than honorable.

   b.  Paragraph 6-12 states:
   
        (1)  An officer who has been notified of being considered for involuntary separation may submit a resignation at any time prior to final action taken on the board proceedings.

         (2)  Commanders will ensure that there is no element of coercion in connection with a resignation in lieu of involuntary separation and that the officer concerned is allowed at least 10 days after notification of impending involuntary separation to make a personal decision when resignation is contemplated.

          (3)  A resignation will automatically suspend involuntary separation action pending final action on the resignation.

	c.  Section V (Resignation of Personnel Who Do Not Meet the Medical Fitness Standards at Time of Appointment)  Paragraph 16-18 states an Honorable Discharge Certificate will be issued.  This paragraph refers to those officers discharged under the provisions of section V of the regulation.

	d.  Paragraph 6-13 states the authority to take final action on resignations in lieu of involuntary separation is restricted to Headquarters, Department of the Army.

15.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge was not approved by a board of officers.  He resigned and did not consent to an under other than honorable conditions discharge.

2.  The circumstances concerning the applicant's resignation in lieu of involuntary separation are not available for review.  His letter of resignation in lieu of involuntary separation was not available.  His separation package is not available for review.

3.  Army Regulation 135-175 states an officer can receive an under other than honorable discharge based on the approved findings of a board of officers convened by competent authority or if the officer concerned waives such board proceedings and consents to discharge under conditions other than honorable.
   
4.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  His discharge under other than honorable conditions was approved by the proper authority.  In the absence of evidence to the contrary, it must be presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  X _______   ___
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20150000894



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ABCMR Record of Proceedings (cont)                                         AR20150000894



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