BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100021487 


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 an upgrade of his under other than honorable conditions discharge from the U.S. Army Reserve (USAR) to either a general under honorable conditions discharge or a fully honorable discharge.

2.  He states he feels the determination of "Other than Honorable" is incorrect based on his review of Army policy.  He believes he should have received either a general discharge or a fully honorable discharge.  He does not feel his "discharge should have been based on the related incidence" and it should have been determined based upon a review of his entire service record, to include the medals and letters of recommendation he received.  He attests that he has not received any type of DD Form 214 (Certificate of Release or Discharge from Active Duty) stating his discharge and that all he received was an email from his unit administrator informing him he was discharged in May 2008.  He concludes that the only DD Forms 214 on file at the National Personnel Records Center (NPRC) were for his two periods of active duty for training.

3.  Although he states he provides awards and decorations paperwork, none was received with his application.  However, he provides:

* two DD Forms 214
* four DD Forms 370 (Request for Reference)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 17 July 2002.

2.  His record contains a DD Form 214 which shows he served on active duty for training during the period 23 October 2002 through 13 May 2003 for the purpose of attending basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded military occupational specialty (MOS) 91W (Health Care Specialist).  He was advanced to the rank/grade of specialist (SPC)/E-4 on 17 July 2004.

3.  His record also contains a DD Form 214 which shows he served on active duty for training during the period 27 September 2004 through 1 November 2005 for the purpose of attending the Practical Nurse course.  Upon completion of this course, he was awarded additional skill identifier M6 (Practical Nurse) that was added to his MOS 91W.

4.  On 15 April 2008, an Assistant Staff Judge Advocate (SJA) for the U.S. Army Civil Affairs and Psychological Operations Command (USACAPOC) (Airborne (A)), Fort Bragg, NC, rendered a legal review memorandum addressed to the USACAPOC Commander.  The SJA informed the commander that:

	a.  He reviewed the proposed administrative documents and proceedings against the applicant and found them to be legally sufficient and that they met the requirements of Army Regulation 135-178 (Army National Guard and Army Reserve - Separation of Enlisted Personnel).  He opined the evidence supported the recommendation that the applicant be discharged with either a general or an under other than honorable conditions discharge.

	b.  The applicant failed to report to an Annual Training (AT) (Nonparticipant Muster) on 8 February 2008.  Before that, he accrued more than 9 unexcused absences from scheduled inactive duty training (IADT) sessions during a 1-year period.  He was served with the AT orders and later the notice of separation under Army Regulation 135-178, chapter 13 (Unsatisfactory participation), and related documents via certified U.S. Mail.  Certified mail return receipt cards verified his receipt, but he did not respond.  As a result, no separation board was conducted.

	c.  The chain of command (at group level) recommended discharge with a general, under honorable conditions discharge.  The company and battalion commanders did not submit a recommendation because the Nonparticipant 

muster was initiated and conducted by 2nd Psychological Operations Group.  However, the Commander, Headquarters, USACAPOC (A), was not bound by that recommendation and under the facts, an under other than honorable conditions discharge characterization may be deemed appropriate.  A general discharge will preserve the applicant's Department of Veterans Affairs benefits, but an under other than honorable conditions discharge would not.

5.  On 5 May 2008, after personally reviewing and considering all material presented with the applicant's separation packet, along with the entire record of this matter (both favorable and unfavorable); the Commanding General directed:

	a.  the applicant's discharge with an under other than honorable conditions discharge;

	b.  the applicant's reduction to the rank/pay grade of private (PV1)/E-1; and

	c.  the recoupment of any unearned portions of any enlistment bonus he may have received.

6.  Orders 08-136-00014, issued by Headquarters, USACAPOC (A), Fort Bragg, dated 15 May 2008, reduced the applicant from SPC/E-4 to PV1/E-1.  These orders also discharged him from the USAR under the authority of Army Regulation 135-178 with an under other than honorable conditions discharge, effective 16 May 2008.

7.  On 21 July 2008, he submitted a request for an upgrade of his discharge to the Army Discharge Review Board (ADRB).  On 26 June 2009, the President of the ADRB informed him that after careful review of his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharged.  Accordingly, his request was denied.

8.  He provides four DD Forms 370 rendered by two former supervisors and two colleagues; all of whom praise his high caliber of knowledge, enthusiasm, and work ethic.

9.  Army Regulation 135-178 sets forth policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and USAR enlisted Soldiers for a variety of reasons to include the Soldier's refusal to comply with orders or correspondence and unsatisfactory participation in drills.  Characterization of service normally will be Under Other Than Honorable Conditions

10.  Army Regulation 135-178 states, in pertinent part, that the honorable characterization of service is appropriate when the quality of the Soldier’s service generally meets the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is warranted when significant negative aspects of the Soldier's conduct or performance outweigh positive aspects of the Soldier's military record.  

11.  Army Regulation 135-178 states, in pertinent part, that if a Soldier's service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions.  Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record.  When authorized, a characterization of under honorable conditions is awarded to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The separation document is to provide the individual with a complete and accurate documentary evidence of their military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty (emphasis added) of more than 90 days to include attendance at basic and advanced training and is prepared for all personnel at the time of their retirement, discharge, or release from active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was discharged by reason of continued absence from drills with an under other than honorable conditions discharge.

2.  As a member of the USAR, the applicant was required to attend all scheduled unit training assemblies, multiple unit training assemblies, and annual training periods.  Evidence shows he did not do so.  Certified mail receipts prove that he received notification letters from his immediate commander; however, he did not respond.

3.  Based on his failure to attend unit drills, the applicant's service appears not to have met the standards of acceptable conduct and performance of duty for USAR personnel.  This misconduct also renders his service as unsatisfactory.  Therefore, there is insufficient evidence to upgrade his discharge.

4.  His record is void of any evidence and he has not provided any evidence showing he completed any other period of active service of more than 90 days between when he was released from active duty for the purpose of attending the Practical Nurse course on 1 November 2005 and when he was discharged from the USAR on 16 May 2008.  There is no regulatory provision for issuing USAR Soldiers a DD Form 214 for any periods of inactive service.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100021487



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ABCMR Record of Proceedings (cont)                                         AR20100021487



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