Applicant Name:  ?????

Application Receipt Date: 2011/10/31	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, he is rebutting all allegations and false evidence that was provided against him.  He never received any UCMJ action, nor was he charged with any civil crimes.  He believes the actions taken against him were in retaliation for filing a congressional inquiry against his command for SAEDA, corruption violations, lack of medical treatment, and improper financial compensation.  He was injured during OIF and OEF.  He would like to receive a medical review board, receive council, be allowed to submit statements, and be properly notified so he knows what evidence is being brought against him.  

He was previously denied proper due process by his command and denied a medical review board.  The charges that were brought against him and used to request an administrative discharge were false.  The notification procedures that were applied were done so in a deceptive and misleading manner with the intention of not allowing him due process and the opportunity to request a board; consequently he did not receive an administrative discharge board.  His chain of command knew that he was in North Carolina and had his E-mail, telephone number and address in North Carolina and had the ability to contact his wife and find out how to contact him if they needed to.   He submitted a DA form 4651 requesting to be released to the IRR due to hardship and because travel was beyond reasonable commuting distance he also noted that he would be moving to Greensboro, NC.  Although, a registered letter was sent to Italy there was absolutely no way he could have signed for it because he was in North Carolina with his parents.  He has more than 17 years of service and was denied an administrative board.

The accusations brought against him were false; additionally, unlawful command influence was used to manipulate and strong arm his raters.  Furthermore, his command fraudulently filled out his NCOER while he was deployed.

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: 080624
Discharge Received: 			   Date: 081107   Chapter: 13    AR: 135-178
Reason: Unsatisfactory Participation	   RE:     SPD: NA   Unit/Location: Det 1, 280th ROC, 771st Civil Support Team Unit 27547, Bamberg, Germany 

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:  36
Current ENL Date: 060316    Current ENL Term: Indef Years  ?????
Current ENL Service: 	2    Yrs, 7   Mos, 21 Days ?????
Total Service:  		17  Yrs, 00Mos, 02Days ?????
Previous Discharges: 	RA       901114 - 980120/HD
                                       USAR  980120 - 000415/NA
                                       RA       000416 - 000922/HD
                                       USAR  000923 - 001014/NA
                                       RA       001015 - 010323/HD
                                       USAR  010324 - 040112/NA
                                       RA       040113 - 050705/HD 
                                       USAR  050706 -  050827/NA
                                       RA       050828 - 060315/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 96B3P Intelligence Analyst   GT: 109   EDU: HS Grad   Overseas: Germany, SWA   Combat: Kosovo (050825 - 060315), Iraq (040113 - 050705)
Decorations/Awards: None

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
             The evidence of record shows that on 24 June 2008, the unit commander notified the applicant of initiation of separation action under the provisions of AR 135-178, paragraph 9-1 by reason of unsatisfactory performance, paragraphs 12-1b and c for pattern of misconduct and commission of a serious offense, and paragraph 13-1a for unsatisfactory participation in the ready Reserve for-being drunk and belligerent, and threatening security guards at Warner Barracks (040204); failing to report for duty (040217); being apprehended following an altercation in which, while intoxicated, he beat and kicked another individual (050521); unsatisfactory performance as reflected in NCOERs (0503 – 0701); reporting late to his place of duty (060309); reporting late to his place of duty and smelling of alcohol (060311); excessively consuming alcohol and disrupting the battle staff ride he was attending (060609 – 060613); receiving unexcused absences and failing to attend unit battle assemblies (0612 – 0702); being apprehended for heavy intoxication, threatening German police; and assaulting U.S. Military Police (070707), with an under other than honorable conditions discharge.  He was advised of his rights.  
       
       The applicant provided evidence that on 28 October 2008, he submitted a memorandum requesting the adminstrative separation actions to be terminated and his rank reinstated due to improper notification procedures and  not being given a chance to defend his honor.  
       
       On 7 October 2008, DA HQS, 7th Army Reserve Command, Unit 29238, APO AE, Orders number 08-281-00002, discharged the applicant from the Army Reserve, effective 7 November 2008, with an under other than honorable conditions discharge.  The record contains a properly constituted Order which indicates the applicant was discharged under the provisions of AR 135-178. 

       b.  Legal Basis for Separation:  
       Army Regulation 135-178 governs procedures covering enlisted personnel management of the Army Reserve.  Chapter 13 of the 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 and attempts to have the Soldier respond or comply with orders or correspondence have resulted in— 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 135-91, paragraph 2-18, and Chapter 3, section IV, of AR 135–178.   Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, 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 military records for the period of enlistment under review, the issues and documents he submitted, the analyst found several mitigating factors which would merit a partial upgrade of the applicant's discharge to general, under honorable conditions.  
       
       This recommendation was made after full consideration of his faithful and honorable service, as well as the former Soldier’s record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service was too harsh, and as a result it is inequitable.  While the applicant's misconduct is not condoned, the overall length and quality of the applicant's service and his combat service mitigated the discrediting entries in the service record.  Additionally, on close review of the applicant's record, it shows there were no UCMJ actions during the course of the applicant's military career and the unit was aware the applicant had returned to the United States and had allowed him to RST with another unit.  
       
       The applicant contends that he was denied due process because he was not in Italy at the time the unit sent out the notification for his discharge purposely to deprive him of his right to an administrative separation board.  However, the certified mail receipt indicates the notice was sent to his address in Italy on 10 June 2008 and someone signed for it.  The applicant contends at the time he was in the United States, that the unit was aware of his location, and he does not know who signed for the notification.  The applicant does state in his application that his wife received a notification in September and informed him of the notice on 19 September 2008.  On 23 September 2008, the applicant by his own admission received email notification of the initiation of the separation action.  The applicant was apparently in the United States during this time period.  The separation authority approved the discharge on 7 October 2008.  Army Regulation 135-178, in pertinent part, stipulates that failure to respond to a notification constitutes a waiver of rights; however, the record shows that the applicant responded to the discharge proceddings on 28 October 2008.  While the applicant appears to have been slow to respond it also appears there were mitigating circumstances surrounding his response time in that the applicant was attending to his father's poor health.
       
       In view of the foregoing, the analyst recommends that the applicant’s characterization of service be upgraded to general, under honorable conditions.  However, the analyst determined the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.  This action entails restoration of grade to E-6/SSG.
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 6 June 2012         Location: Washington, D. C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293 with a self-authored statement, discharge packet, memorandum requesting administrative separations action be terminated, orders 004068, orders 004067, prescription for Zolpidem, various email traffic, memorandum to Congressman BM of NC, patient appointment slip, orders 07-165-00001, orders 07-163-00010, DA Form 4651 (Transfer Request), counseling form, physical medical rehabilitation consultation sheet, memorandum giving legal opinion, points detail, memorandum concerning letter of reprimand, 5 DD 214’s, and various awards and certificates

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the analyst’s recommendation and rationale, the Board concluded the seriousness of the offenses overcame the length, quality, combat tours and mitigating circumstance and after carefully examining the applicant’s record of service during the period of enlistment under review the Board determined that the discharge was both proper and equitable and voted to deny relief.  
        
IX.  Board Decision						
Board Vote:  							          	
Character - Change 1    No change 4
Reason -     Change 0    No change 5
(Board member names available upon request) ?????
								         
X.  Board Action Directed					         
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:



ARCHIE L. DAVIS III
Colonel, U.S. Army
President, Army Discharge Review Board



BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder














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 AR20110021891
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