IN THE CASE OF:  	

      BOARD DATE:  	6 May 2013

      CASE NUMBER:  	AR20120017850
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.



      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, his characterization of service was unwarranted by the facts and circumstances of his separation.  The board which recommended his separation failed to give him a fair hearing in accordance with Army Regulation and standards.  His legal counsel failed to provide effective representation at the hearing through examination and cross-examination of witnesses.  His leadership took action against him and not against other Soldiers who committed similar acts.  Other Soldiers who actually committed misconduct of a more severe nature than his were given minimal non-judicial punishment, with no action to remove them from the AGR program.  His service record prior to his misconduct was honorable, professional and dedicated to duty.  He believes his characterization of service should be changed to Honorable and if possible his re-entry code be changed accordingly.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			20 September 2012
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				12 March 2010
d. Reason/Authority/SPD/RE Code:	  	Misconduct, AR 135-178, Chapter 12           								RE-3/NGR 600-200, Para 6-35i
e. Unit of assignment:				HQ (-) 42d ID Troy, NY	
f. Current Enlistment Date/Term:		30 September 2006, 6 years
g. Current Enlistment Service:		3 years, 5 months, 13 days
h. Total Service:				13 years, 6 months, 23 days
i. Time Lost:					None
j. Previous Discharges:			ARNG-960820-970222/NA
							ADT-970223-970605/UNC
							ARNG-970606-060929/NA
         (Concurrent Service)
k. Highest Grade Achieved:			E-6
l. Military Occupational Specialty:		42A10, Human Resources Specialist
m. GT Score:					115
n. Education:					HS Graduate 
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			ARCOM-2, AGCM-2, ARCAM-4, NDSM, 								GWOTSM, AFRM-w/BHG, NCOPDR-3, ASR
r. Administrative Separation Board: 		NIF
s. Performance Ratings:			Yes
t. Counseling Statements:			None
u. Prior Board Review:				No
SUMMARY OF SERVICE:		

The applicant enlisted in the Army National Guard on 20 August 1996 for a period of 8 years.  He was a high school graduate.  On 30 September 1997 he entered the AGR program for a period of 3 years and 6 months, and again on 30 September 2006 for 6 years.  He was 41 years old at the time.  He served for a total of 13 years, 6 months, and 23 days in the Army National Guard.  His service record reflects he achieved the rank of SSG/E-6, and earned two ARCOMs, two AGCMs, and four ARCAMs.
 
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army National Guard of the State of New York.  

2.  The record shows that on 15 March 2010, Office of the Adjutant General Joint Force Headquarters, Latham, New York, Orders 074-1081 discharged the applicant from the Army National Guard and as a Reserve of the Army, effective date 12 March 2010, with an under other than other conditions discharge.  

3.  The record contains a properly constituted NGB Form 22 (Report of Separation and Record of Service).  It indicates the applicant was discharged under the provisions of Chapter 6, paragraph 6-35, NGR 600-200 and Chapter 12, AR 135-178, by reason of misconduct, with a characterization of service of under other than other conditions, and a reenlistment eligibility (RE) code of 3.

4.  On 15 June 2012, The Adjutant General, Army National Guard of the State of New York, reviewed the applicant’s request for a change in his discharge and denied his request.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no counseling statements or UCMJ actions in the available record.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided letters indicating his request to The Adjutant General, Army National Guard of the State of New York, to upgrade his characterization of service and a letter which denied his request for upgrade in addition to his application.

POST-SERVICE ACTIVITY: 

None provided by the applicant.

REGULATORY AUTHORITY:

1.  Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve.  Chapter 12 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  

2.  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.   

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his available discharge was carefully considered.  However, after examining the applicant’s military records, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the State of New York Army National Guard and as Reserve of the Army.  However, the record does contain a properly constituted NGB Form 22 (Report of Separation and Record of Service), which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the service.  The NGB Form 22 shows the applicant was discharged under the provisions of Chapter 6, paragraph 6-35, NGR 600-200/Chapter 12, paragraph 12, AR 135-178, by reason of misconduct with a characterization of service of under other than honorable conditions

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant's contentions were carefully considered.  However, a determination as to the merit of these contentions cannot be made because the facts and circumstances leading to the discharge are unknown.  The burden of proof remains with the applicant to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.  

5.  The applicant provided documentation from the ARNG, State of New York that indicates that on 15 June 2012 his request for a discharge upgrade was denied.

6.  Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personnel Appearance   Date: 6 May 2013   Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  No

Witnesses/Observers: NA 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

a.  AMHRR, various letters and documents (277 pages)

2.  In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:			No
Change Characterization to:		No Change
Change Reason to:				No Change
Change Authority for Separation:		No Change
Change RE Code to:			No Change
Grade Restoration to:			NA
Other:						NA






Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions




ADRB Case Report and Directive (cont)		AR20120017850



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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