IN THE CASE OF: BOARD DATE: 1 November 2013 CASE NUMBER: AR20130007334 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief. Presiding Officer I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case. THE APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of his discharge from under other than honorable conditions to honorable. 2. The applicant states, in effect, he was unjustly discharged after informing the unit of his medical condition. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 15 April 2013 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 30 August 2012 d. Reason/Authority/SPD/RE Code: Unsatisfactory Participation, Chapter 13, AR 135-178 NA e. Unit of assignment: 387th Engineer Company (2nd Plt), Scottsdale, AZ f. Current Enlistment Date/Term: 9 April 2010, 8 years g. Current Enlistment Service: 2 years, 4 months, 22 days h. Total Service: 2 years, 4 months, 22 days i. Time Lost: NIF j. Previous Discharges: IADT-(100629-101120)/NA (Concurrent Service) k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 12N10, Horizontal Construction m. GT Score: 90 n. Education: HS Graduate o. Overseas Service: No p. Combat Service: No q. Decorations/Awards: NDSM, ASR r. Administrative Separation Board: NIF s. Performance Ratings: No t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the U.S. Army Reserve on 9 April 2010, for 8 years. He was 21 years old at the time and a high school graduate. He was ordered to initial active duty training on 29 June 2010 and was awarded military occupational specialty (MOS) 12N10, Horizontal Construction and returned to his unit. His service record does not reflect any personally earned awards or any combat duty. He was serving at Scottsdale, AZ when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record shows that on 20 June 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 13, AR 135-178, by reason of unsatisfactory participation, due to continued non-performance of battle training assemblies as defined by AR 140-10, Chapter 4. 2. The applicant’s election of rights is not contained in the available record. However, the unit commander indicated in the notification letter that he was suspending the separation action for 45 days, to allow the applicant with the opportunity to exercise his right to consult with legal counsel. On 3 August 2012, the unit commander recommended separation from the US Army Reserve (USAR). The intermediate senior commanders recommended approval of the proposed action with an under other than honorable conditions discharge. 3. The separation authority’s documentation waiving further rehabilitative efforts and directing the applicant’s discharge with a characterization of service of under other than honorable conditions is not contained in the available record and government regularity prevails in the discharge process. 4. The record contains documentation that shows the unit contacted the applicant on several occasions and he refused to come in, as instructed. 5. On 23 August 2012, DA HQS, 88th Regional Support Command, Fort McCoy, WI, Orders number 12-236-00029, discharged the applicant from the US Army Reserve, effective 30 August 2012, with an under other than honorable conditions discharge. The applicant was reduced to the lowest enlisted rank. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. He received a negative counseling statement dated 21 June 2012, for unsatisfactory participant/retention. 2. The record contains two DA Forms 4187 (Personnel Action), dated 21 June 2012 and 15 August 2012, which indicated the chain of command recommend approval of the separation with an under other than honorable conditions discharge. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, applicant’s statement, Letter, UPMC Heart and Vascular Institute Medical documents, Metropolitan Life Insurance Company, Explanation of Benefits Long Term Disability, Keystone Rehabilitation Systems Plan of Care, five pages, photo copy of a business card, and discharge orders. POST-SERVICE ACTIVITY: The applicant did not provide any with the application. REGULATORY AUTHORITY: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this Chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 2. Army policy states that a general, under honorable conditions discharge is normally considered appropriate; however, an honorable discharge may be granted in meritorious cases. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s record of service, his military records, the document and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The record confirms the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By his refusal to participate in unit drills, the applicant diminished the quality of his service below that meriting a general, under honorable conditions or an honorable discharge. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. 4. The applicant contends he was he was unjustly discharged after informing the unit of his medical condition. However, the record shows the unit commander attempted to contact the applicant on several occasions and mailed the discharge packet to his last known address via certified mail. Army Regulation 135-178, in pertinent part, stipulates that a Soldier is subject to discharge for unsatisfactory participation when it is determined the Soldier is unqualified for further military service because the Soldier is an unsatisfactory participant as prescribed in Chapter 4, AR 135-91 and attempts to have the Soldier respond or comply with orders or correspondence have resulted in the Soldier’s refusal to comply with such orders or correspondence; or a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; or verification that the Soldier failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed. 5. Further, the record does not contain any indication or evidence of arbitrary or capricious actions by the command. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant’s discharge is commensurate with his overall service record. 6. The records show the proper discharge and separation authority procedures were followed in this case and an under other than honorable conditions discharge is normally considered appropriate. 7. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 1 November 2013 Location: Washington, DC Did the Applicant Testify: No Counsel: None Board Vote: Character Change: 0 No Change: 5 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: No Change Characterization to: No Change Change Reason to: No Change Change Authority for Separation: No Change Change RE Code to: No Change Grade Restoration to: NA Other: NA Legend: AMHRR - Army Military Human Resource Record FG - Field Grade IADT – Initial Active Duty Training RE - Reentry AWOL - Absent Without Leave GD - General Discharge NA - Not applicable SCM- Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial CG - Company Grade Article 15 HD - Honorable Discharge OAD - Ordered to Active Duty UNC - Uncharacterized Discharge CID - Criminal investigation Department MP – Military Police OMPF - Official Military Personnel File UOTHC - Under Other Than Honorable Conditions ADRB Case Report and Directive (cont) AR20130007334 Page 2 of 5 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1