Applicant Name:  ?????

Application Receipt Date: 2010/05/12	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests an upgrade of his discharge to general, under honorable conditions.  He contends that the commander counseled him regarding the situation and actions that led to his discharge and recommended a general, under honorable conditions discharge in light of his personal circumstances.

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: 081205
Discharge Received: 			   Date: 090215   Chapter: 13      AR: 135-178
Reason: Unsatisfactory Participation	   RE:     SPD: NA   Unit/Location: 990th EN Co, Fort Dix, NJ 

Time Lost: NIF

Article 15s (Charges/Dates/Punishment): NIF

Courts-Martial (Charges/Dates/Punishment): NIF

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  39
Current ENL Date: 000809    Current ENL Term: 06 Years  based on the available record it appears that the applicant reenlisted or extended as of his discharge date (090215).  However, the document is not part of the available record.
Current ENL Service: 	08 Yrs, 06 Mos, 07 Days ?????
Total Service:  		30 Yrs, 03 Mos, 02Days ?????
Previous Discharges: 	USAR-790517-790626/NA
                                       ADT-790627-800311/HD
                                       USARCG-800312-850319/NA
                                       ARNG-850320-910725/HD
                                       USAR-910726-951004/HD
                                       USAR-951005-980629/NA
                                       USARCG-980630-000808/HD
                                       AD-030218-040415/HD
                                         (Concurrent Service)
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 21W20 Carpentry & Masonry Spec   GT: NIF   EDU: HS Grad   Overseas: Southwest Asia   Combat: Kuwait/Iraq (030418-040228)
Decorations/Awards: ARCOM, ARCAM-3, NDSM-2, AFRM-W/"M" DEV, NCOPDR, ASR, OSB, 

V.  Post-Discharge Activity
City, State:  Bridgeport, CT 
Post Service Accomplishments: None Listed



VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 5 December 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 13, AR 135-138, by reason of unsatisfactory participation, with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 5 December 2008, the applicant waived legal counsel and did not indicate if a statement was submittted in his own behalf.  Also, in his election of rights it appears that the applicant inadvertantly checked box 4-2 instead of box 4-4-2b, which indicates that he waived consideration of his case by an administrative separation board.  The applicant   The unit commander's and the separation authority's memoranda are not contained in the available record and the analyst presumed government regularity in the discharge process.
       
       On 16 January 2009, DA, HQS, 412th Engineer Command, Vicksburg, MS, Orders 09-016-00055, discharged the applicant from the United States Army Reserve, effective date:  15 February 2009, with an under other than honorable conditions discharge.  The applicant was to be reduced to the lowest enlisted rank.

       b.  Legal Basis for Separation:  
       Army Regulation 135-78 govern procedures covering enlisted personnel management of the Army Reserve.    Paragraph 13-1 of that regulation provides in pertinent part that individuals can be separated for being an unsatisfactory participant.   Army Regulation 135-91 states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a 1 year period.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate, but a general discharge 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 available military records during the period of enlistment under review , the issues and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  All the facts and circumstances pertaining to the applicant’s discharge from the United States Army Reserve are not contained in the available records.
        
       On 16 January 2009, DA, HQS, 412th Engineer Command, Vicksburg, MS, Orders 09-016-00055, discharged the applicant from the United States Army Reserve, effective date:  15 February 2009, with an under other than honorable conditions discharge.  This document identifies the characterization of the discharge and the analyst presumed government regularity in the discharge process.  
       
       Barring evidence to the contrary, 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 applicant contends that the commander counseled him regarding the situation and actions that led to his discharge and recommended a general, under honorable conditions discharge in light of his personal circumstances.  The intermediate commanders and the separation authority are not bound by the unit commander's recommendation as to characterrization of service.
       
       Further, 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 determined that the applicant’s Official Military Personnel File (OMPF) does not contain all the specific documents that would indicate the reason for the separation action from the United States Army.  If the applicant desires to appear before a personal appearance Board, the burden of proof remains with the former Soldier to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration.
       
       Therefore, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief.  
VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 23 February 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 149, dated (100420); AR 135-178, Discharge Packet consisting of sixteen (16) pages. 

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the characterization of service is too harsh, and as a result it is inequitable.  The Board determined that the overall length and quality of the applicant’s service, to include his combat service, mitigated the discrediting entries in his service record.  

Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the Board determined that the reason for discharge was proper and equitable and voted not to change it.  This action entails restoration of grade to SGT/E-5.
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: SGT/E-5












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 AR20100015054
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