Applicant Name:  ?????

Application Receipt Date: 2010/04/08	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: " Unlawful and unjust OTH discharge from the United States Army Reserve.  No representation, rights violation, improper board precedings, record of service does not warrant nor justify an OTH discharge.  Board members not my career field.  Unjust board record claims no show at annual drill 1 Nov 2008 warranted an OTH discharge.  I could not attend because of 100% VA Disability rating and 100% Unemployability rating.  Distance from drill location imposed extreme hardship due to residence outside of the continental United States.  Philippine Islands.  Command was informed."

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: NIF
Discharge Received: 			   Date: 090928   Chapter: NIF     AR: 135-175
Reason: NIF	   RE:     SPD: NIF   Unit/Location: HHC, 5th Bn, 159th Av Rgt, Fort Eustis, VA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  44
Current ENL Date: 990319    Current ENL Term: Indef Years  ?????
Current ENL Service: 	10 Yrs, 06Mos, 10Days ?????
Total Service:  		25 Yrs, 01Mos, 13Days ?????
Previous Discharges: 	USAR-840816-841204/NA
                                       RA841205-910815/HD
                                       RA-910816--990318/HD
Highest Grade: O4		Performance Ratings Available: Yes    No 
MOS: 35G/MI   GT: NA   EDU: BS   Overseas: Korea, Germany (Prior periods of services)   Combat: None
Decorations/Awards: JSCOM, ARCOM, ZSAAM, AAM-2, AGCM-2, NDSM, NCOPDR-2, ASR, OSR-2, 

V.  Post-Discharge Activity
City, State:  Angeles City 02009
Post Service Accomplishments: None Listed








VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 2, paragraph 2-12i(1) and (2). AR 135-175, by reason of misconduct, moral or professional dereliction.
       
       The applicant was directed to show cause for retention in the U.S. Army Reserve for failing to report to Annual Training on 1 November 2008.  He was advised that he could submit a voluntary resignation in lieu of elimination or if eligible submit a request for transfer to the Retired Reserve, if eligible or request an appearance before a Board of Inquiry.  
       
       Records show that the applicant failed to respond to the notification of separation and notification of the administrative separation board hearing.  IAW AR 135-175, paragraph 2-17g; Department of the Army Memorandum, dated 13 February 2007, and USARC Memorandum, dated April 2007, when an officer refuses to respond to the proper notification of a separation action, the officer waives all due process rights they may have had under AR 135-175, including assignment of legal counsel to appear on their behalf, and as such, the board may procced without the officer and/or his counsel being present.
       
       On 24 January 2009, a Board of Inquiry (Show Cause Board) was convened.  The Board found that the applicant committed an act of moral or professional dereliction of duty by failing to participate satisfactorily in the United States Army Reserve and recommended that he be separated from the USAR with an under other than honorable conditions discharge.  
       
       On 12 March 2009, the major commander approved the Board’s findings and recommended that the applicant be separated from the USAR with an under other than honorable conditions discharge.
       
       On 1 May 2009, the separation authority directed that the applicant be discharged with a characterization of service of under other than honorable conditions.  

       b.  Legal Basis for Separation:  
       Army Regulation 135-175 sets forth the basic authority for the separation of officers from the U.S. Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days.  Chapters 2 and 3 of this regulation provide the basis for involuntary separations of USAR officers.  Specific categories include substandard performance of duty, moral or professional dereliction, in the interest of national security, as a result of trial by court martial, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, homosexual conduct, convictions by civil authorities and desertion or absence without proper authority from unit training.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate, however, a general under honorable conditions or an honorable discharge may be granted. 

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records during the term of service, the issues, and documents he submitted, the analyst determined that the evidence was not sufficiently mitigating to warrant an upgrade of the discharge under review.  
       
       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 Army Officers.  By his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable or general, under honorable conditions discharge.  
       
       
       
       
       
       The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  
       
       The applicant contends that he could not attend annual drill because of 100% VA Disability rating and 100% Unemployability rating, distance from drill location imposed extreme hardship due to residence outside of the continental United States, Philippine Islands, and the Command was informed.  The analyst noted the applicant's contention's, however, the available record does not support the applicant's contentions and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.  
       
       Furthermore, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       The analyst noted the applicant's issue that he received no representation, violation of his rights, and improper board preceding.  However, IAW AR 135-175, paragraph 2-17g; Department of the Army Memorandum, dated 13 February 207, and USARC Memorandum, dated April 2007, when an officer refuses to respond to the proper notification of a separation action, the officer waives all due process rights they may have had under AR 135-175, including assignment of legal counsel to appear on their behalf, and as such, the board may proceed without the officer and/or his counsel being present.
       
       Further, the Soldier’s refusal to comply with orders or correspondence; or a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; or verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed.  Discharge action may be taken when the Soldier cannot be located or is absent in the hands of civil authorities in accordance with the provisions of AR 135–175.  The applicant had the obligation to continue to attend scheduled drills until his discharge is approved; however, the record shows he intentionally failed to perform his military duties as scheduled.
       
       In view of the foregoing, the analyst determined that the reason for discharge and the characterization of service remain both proper and equitable and recommends to the Board to deny relief.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 25 February 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 149, Separation Board Results (5 pages), Notification of Eligibility for Retired Pay at Age 60 Memorandum, Chronological Statement of Retirement Points, discharge order, dated 28 August 2009, 

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the term of service under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.  








        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)
								         EDGAR J. YANGER			 
								         Colonel, U.S. Army
X.  Board Action Directed					         President, Army Discharge Review Board
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA


































Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20100012748
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