IN THE CASE OF:  	Ms 

      BOARD DATE:  	15 May 2013

      CASE NUMBER:  	AR20130001266
___________________________________________________________________________

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 an upgrade of her discharge from under other than honorable conditions to honorable.  

2.  The applicant states, in effect, she was discharged from the US Army Reserve (USAR) as an unsatisfactory participant because she was unable to make the commute to drill.  She requested a transfer to a unit closer to her residence and the commander refused to approve the transfer and she was not afforded the opportunity to transfer to the Individual Ready Reserve (IRR).  She had eight good years of service as shown by her NCOERs, being promoted ahead of her peers, and receiving several awards.  She had no infractions prior to this. She desires to reenlist and complete her commitment.       

DISCHARGE UNDER REVIEW INFORMATION:
														
a.  Application Receipt Date:		18 December 2012
b.  Discharge Received:			Under Other Than Honorable Conditions
c.  Date of Discharge:			27 May 2010						                    d.  Reason/Authority/SPD/RE Code:	NIF/135-178						
e.  Unit of assignment:			75th BCTD, Headquarters 3rd Brigade, 		         
						Fort Sheridan, IL		
f.  Current Enlistment Date/Term:		11 September 2001, 8 years/the record					                     		does not contain any document extending her beyond 					 eight years
g.  Current Enlistment Service:		8 years, 8 months, 17 days	
h.  Total Service:				8 years, 8 months, 17 days     
i.   Time Lost:				NIF								 j.   Previous Discharges:                       	IADT-(011002-020426)/HD										   (Concurrent Service)
k.  Highest Grade Achieved:		E-6
l.   Military Occupational Specialty:	27D30, Paralegal Specialist	
m. GT Score:                       		NIF	
n.  Education:                			14 Years
o.  Overseas Service:   			Germany 	
p.  Combat Service:      			NIF 	
q.  Decorations/Awards:           		ARCOM-2, AAM-2, ARCAM, NDSM, ASR, ARCOTR
r.   Administrative Separation Board:  	NIF
s.  Performance Ratings:              		Yes
t.  Counseling Statements:              	NIF
u.  Prior Board Review:			No






SUMMARY OF SERVICE:		
	
The applicant enlisted in the U.S. Army Reserve on 11September 2001 for 8 years.  She was 21 years old and had completed two years of college.  She served in Germany and had no prior enlistment in the USAR.  Her service record reflects she earned several awards which included an ARCOM-2, AAM-2, and an ARCAM.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the specific facts and circumstances concerning the events which led to her discharge from the USAR.  

2.  The available evidence in the record indicates that on 27 May 2010, DA, HQS, 88th Regional Support Command, Fort McCoy, WI, Orders number 10-147-00050, discharged the applicant from the U.S Army Reserve, effective 27 May 2010, with an under other than honorable conditions discharge.  The applicant was to be reduced to the lowest enlisted rank. 

3.  The record contains a properly constituted order which indicates the applicant was discharged under the provisions of AR 135-178, with a characterization of service of under other than honorable conditions.   

4.  The applicant’s available service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Discharge Orders 10-147-00050, dated 27 May 2010.

2.  The record contains a NCO Evaluation Report (NCOER), covering the period of 13 August 2005 through 18 August 2006, that shows the applicant was rated “Fully Capable.” 

3.  The applicant’s available record does not contain any recorded actions under the UCMJ or counseling statements.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293; Discharge Orders 10-147-00050; DD Form 214; Letter, Chief, Congressional and Special Actions; Letter, Chief, Case Management Division; Excerpt, DoDI1215.13, page 16; Excerpts of AR- 135-178; four DA Forms 2166-8, NCO Evaluation Reports (NCOERs); four DA Forms 638 (Recommendation for Award); ARCOM Citations; AAM Citations; Certificate of Achievement; two Certificates of Appreciation; Certificate of Excellence; 91st Legal Support Organization Certificate; Memorandum of Commendation; Letter of Input; Memorandum, Army Reserve Components Overseas Training Ribbon (ARCOTR); Memorandum,  Award of Army Reserve Components Achievement Medal (ARCAM); Memorandum, National Defense Service Medal; two Promotion Orders 07-036-00019, 0124903; Memorandum, Promotion Notification; DA Form 4187 (Personnel Action); three Memoranda of Appointment, EO NCO, Key Control Custodian, Weight Control NCO; Reassignment Orders 08-108-00020; and a Birth Certificate.

POST-SERVICE ACTIVITY: 

The applicant did not provide any.  

REGULATORY AUTHORITY:

1.  Army Regulation 135-178, sets forth the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons.  The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline.  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. 

2.  The characterization is based upon the quality of the Soldier’s service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army Regulations, and the time-honored customs and traditions of the Army.  The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization. 

3.  Possible characterizations of service include an honorable, general, under honorable conditions, under other than honorable conditions, or uncharacterized if the Soldier is in entry-level status.  However, the permissible range of characterization varies based on the reason for separation.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of her discharge was carefully considered.  However, after examining the applicant’s record of service, her available 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 the former Soldier’s discharge from the U.S. Army Reserves.  However, the record shows that on 27 May 2010, DA, HQS, 88th Regional Support Command, Fort McCoy, WI, Orders number 10-147-00050, discharged the applicant from the U.S Army Reserve, effective 27 May 2010, with an under other than honorable conditions discharge.  

3.  Barring evidence to the contrary, the presumption of government regularity shall prevail, as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant contends she was discharged from the USAR as an unsatisfactory participant because she was unable to make the commute to drill.  Army Regulation 135-91 states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills acrue during a 1 year period and attempts to have the Soldier respond or comply with orders or correspondence failed.  

5.  The applicant further contends she requested a transfer to a unit closer to her residence and the commander refused to approve the transfer and she was not afforded the opportunity go into the individual ready reserve (IRR).  The applicant bears the burden of presenting substantial and credible evidence to support these contentions.  There is no evidence in the record, nor has the applicant produced any evidence to support these contentions that she was denied a unit transfer or to go to the IRR.  A review of the available service record does not reveal any evidence of arbitrary or capricious actions by the applicant’s command.  

6.  The applicant also contends she had eight good years of service as shown by her NCOERs, being promoted ahead of her peers, and receiving several awards.  The applicant’s service accomplishments and the quality of her service prior to the incidents that caused the initiation of discharge proceedings were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge under review. 

7.  The applicant additionally contends she had no infractions prior to this one.  However, the applicant committed many discrediting offenses (i.e., Army Regulation 135-91 states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills acrue during a 1 year period), which constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicant’s numerous incidents of misconduct adversely affected the quality of her service, brought discredit on the Army, and were prejudicial to good order and discipline.  

8.  The applicant desires to reenlist in the USAR.  However, at the time of discharge, the applicant received an under other than honorable conditions characterization of service.  Army Regulation 601-280, stipulates that an under other than honorable conditions discharge constitutes a non-waivable disqualification, thus the applicant is no longer eligible for reenlistment. 

9.  If the applicant desires a personal appearance hearing, it will be her responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

10.  Therefore, based on the available evidence and the presumption of government regularity, it appears the characterization of service was both proper and equitable, thus recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review      Date:  15 May 2013       Location:  Washington, DC

Did the Applicant Testify:  NA 

Counsel:  NA

Witnesses/Observers:  NA 

Board Vote:
Character Change:  2	No Change:  3
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:	NA
Change RE Code to:		NA
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)		AR20130001266



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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