BOARD DATE: 25 August 2009
DOCKET NUMBER: AR20090001711
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 that the character of his service be changed from under other than honorable conditions to uncharacterized based on his commander's recommendation.
2. The applicant states he is a good soldier and person and was under hardship at the time of his discharge. He argues that he asked to see a judge advocate but was told by his unit administrator there was none for his company. He takes full responsibility for his dismissal but should have received the discharge his commander recommended. He adds that he was not informed of his rights and would like to come back into the Army to prove he is a good Soldier.
3. The applicant provides discharge orders and a Commander's Report for Separation in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the U. S. Army Reserve (USAR) on 2 April 2003.
2. The applicant's record is void of the specific facts and circumstances concerning the events that led to his discharge from the USAR.
3. The applicant provided a Commander's Report for Separation, dated
21 August 2005. In this document, his commander recommended his separation from the USAR because of unsatisfactory participation and failure to respond to official correspondence and that his service be characterized as uncharacterized.
4. The applicant also provided Orders Number 06-159-00167, dated 8 June 2006, issued by Headquarters, United States Army Civil Affairs and Psychological Operations Command, Fort Bragg, North Carolina, which discharged the applicant from the USAR effective 8 June 2006, with an under other than honorable conditions discharge.
5. The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge on 22 August 2008.
6. Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) governs procedures for discharges for enlisted personnel of the USAR and Army National Guard. It covers, in pertinent part, discharge and separation of enlisted personnel for misconduct, unsatisfactory performance, or for other reasons. Army Regulation 135-91 (Army National Guard and Army Reserve Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a one year period. An enlisted member separated for misconduct which includes unsatisfactory participation will normally be furnished a characterization of service of under other than honorable conditions in accordance with Army Regulation 135-178.
DISCUSSION AND CONCLUSIONS:
1. The applicant was discharged due to unsatisfactory participation. Pertinent regulation authorizes the issuance of an under other than honorable conditions discharge for Soldiers separated for unsatisfactory participation.
2. Without the discharge proceedings available for review by the Board, government regularity in the discharge process must be presumed.
3. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. Therefore, it is concluded that the characterization of service and reason for the applicant's discharge were both proper and equitable.
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.
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