IN THE CASE OF:  	

      BOARD DATE:  	21 June 2013

      CASE NUMBER:  	AR20130001142
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review 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 and a change in the narrative reason for separation.

2.  The applicant states, in effect, one of the most fundamental rights provided in the Constitution of the United States, is the 6th Amendment right to counsel.  He was not afforded the opportunity and was discharged before he ever had a chance to obtain legal counsel.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			3 January 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				1 September 2012			
d. Reason/Authority/SPD/RE Code:		Moral/Professional Dereliction, AR 135-175								Chapter 2, paragraph 2-12, NA
e. Unit of assignment:				Headquarters, 143rd Sustainment Command 							(Expeditionary), Orlando, FL
f. Current Entry Date/Term:			4 June 2010, Indef	
g. Current Term Net Active Service:		2 years, 4 month, 26 days	
h. Total Service:				12 years, 9 month, 12 days
i. Time Lost:					None
j. Previous Discharges:			RA (860703-870702)/GD											ARNG-(020113-040102)/NA										AD-(040103-050316)/HD											ARNG-(050317-050731)/HD										USARCG-(050801-090123)/NA
k. Highest Grade Achieved:			O-1
l. Military Occupational Specialty:		Transportation Corps
m. GT Score:					NA
n. Education:					MBA
o. Overseas Service:				Southwest Asia/prior service
p. Combat Service:				Iraq (040225-050217)/prior service
q. Decorations/Awards:			ARCOM, AAM, NDSM, GWOTEM, GWOTSM, 								AFRM-W/”M” DEV, ASR/ all prior service
r. Administrative Separation Board: 		Yes
s. Performance Ratings:			None
t. Counseling Statements:			No
u. Prior Board Review:				No



SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 3 July 1986, the period of service is not contained in the available record, and he was 19 years old.  He was discharged on 2 July 1987 with a general, under honorable conditions discharge.  He enlisted in the Army National Guard on 13 January 2002 for one year and was 34 years old.  He was ordered to active duty and served a combat tour.  His record shows he served a prior combat tour and earned several awards including an ARCOM and an AAM.  He extended on two separate occasions and was discharged on 31 July 2005, with an honorable discharge.  He was transferred to the U.S. Army Reserve Control Group until termination of his military service obligation on 23 January 2009.  He was commissioned as a second lieutenant on 4 June 2010.  He was 42 years old at the time and a college graduate.  He was assigned to the 143rd Sustainment Command, Orlando, FL, when separation action was initiated.  His service record does not reflect any personally earned awards or any combat service during the term of service under review.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 29 September 2011, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 2, paragraphs 2-12b, c, f, j, and o, AR 135-175, by reason of moral or professional dereliction for the following offenses:

     a.  mismanaging his personal affairs to the discredit of the service

     b.  mismanaging his personal affairs detrimentally affecting the performance of duty of the officer concerned

     c.  acts of personal misconduct (including, but not limited to, committing acts while in a drunken or drug intoxicated state)

     d.  being convicted by a civil court of a felony when no sentence to confinement results.

     e.  conduct unbecoming an officer

2.  The applicant was advised he could appear before a Board of Inquiry (BOI), submit statements in his behalf, or waive his rights. He did not submit a waiver of rights or otherwise respond to the notification of separation.  Failure or refusal by the applicant to accept or respond to this notification within 30 days will not deter board action proceedings in his case.

3.  On 19 November 2011, the applicant was notified to appear before a BOI.  On                  11 December 2011, the Board convened without the applicant or his counsel present.  The board found the applicant committed mismanagement of his personal affairs, detrimentally affecting the performance of duty, act of personal misconduct including, but not limited to, acts committed while in a drunken or drug intoxicated state and convicted by a civil court of a felony when no sentence to confinement results.  The Board recommended separation with an under honorable other than conditions discharge.  
4.  On 5 January 2012, the Commander, 143rd Sustainment Command, forwarded the findings and recommendations of the BOI to the Commanding General, U.S. Army Reserve Command (USARC) for action and he recommended the applicant’s discharge with an under other than honorable conditions discharge.

5.  On 5 June 2012, the Commanding General, USARC forwarded the findings and recommendations of the BOI to the Commander, U.S. Army Human Resources Command for action, and recommended the applicant’s discharge from the service with issuance of an under other than honorable conditions discharge.  

6.  On 1 August 2012, the Commander, U.S. Army Human Resources Command, approved the findings and recommendations of the BOI and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.   

7.  The applicant was discharged from the Army on 1 September 2012, with a characterization of service of under other than honorable conditions.

8.  The applicant’s service record does not contain any evidence of unauthorized absences, time lost or actions under the Uniformed Code of Military Justice (UCMJ). 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The record of evidence did not contain any other relevant evidence.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application; Memorandum, Trial Defense Counsel, two pages; Memorandum, Involuntary Separation Board Hearing, two pages; e-mail traffic, three pages; Memorandum, applicant’s separation board; Separation Authority’s Documentation; and Discharge Orders D-08-212160.

POST-SERVICE ACTIVITY: 

The applicant did not provide any with the application.

REGULATORY AUTHORITY:

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.   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, 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.
DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason was carefully considered.  However, after examining the applicant’s record of service, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation.    

2.  The record confirms 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 Reserve officers.  It brought discredit on the Army Reserve and was prejudicial to good order and discipline.  By his misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge.  

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

4.  The applicant requested a change to the narrative reason for separation.  The narrative reason for separation is governed by specific directives.  The complete facts and circumstances leading to the discharge are unknown.  The applicant bears the burden of the presenting substantial and credible evidence to support his request to change the reason for his discharge.  There is no evidence in the record, nor has the applicant provided any evidence, to support the request that the reason for his discharge was improper or inequitable.

5.  The applicant contends one of the most fundamental rights provided in the Constitution of the United States, is the 6th Amendment right to counsel.  He was not afforded the opportunity and was discharged before he ever had a chance to obtain legal counsel.  The applicant’s defense counsel indicated in his memorandum, the applicant was discharged on 11 December 2011.  However, the record shows the applicant’s discharge was not approved until 1 August 2012.  He was discharged on 1 September 2012.  

6.  Further, in a memorandum dated 3 May 2012, the applicant’s defense counsel stated he was assigned as the applicant’s counsel for pending separation action.  The evidence of record shows the applicant was represented by counsel long before he was discharged. 

7.  Also, the record shows the unit commander attempted to contact the applicant on several occasions and the discharge packet was mailed to his last known address via certified mail.  

8.  Further, the applicant’s record contains no evidence of arbitrary or capricious actions by the command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

9.  The records show the proper discharge and separation authority procedures were followed in this case.  

10.  Therefore, the reason for discharge and characterization of service being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Record Review              Date:  21 June 2013        Location:  Washington, DC

Did the Applicant Testify:  No 

Counsel:  Yes

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 Discharge Orders:		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)		AR20130001142

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1