IN THE CASE OF:  	

      BOARD DATE:  	27 September 2013

      CASE NUMBER:  	AR20130001592
___________________________________________________________________________

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 his under other than honorable conditions discharge to honorable; change the narrative reason for separation and the reentry eligibility (RE) code to 1.

2.  The applicant’s counsel states, in effect, that LTC J disregarded the plain language of AR 135-178, paragraph 7-4, when he discharged the applicant for fraudulent enlistment.  The applicant did not have the requisite mindset to purposely conceal his past positive urinalysis test and military service when he signed his enlistment contract.  Although the applicant should have taken time to thoroughly review the contract; this one oversight should not be enough to destroy his long and prosperous Army career.  The prejudicial error made by LTC J has unquestionably caused the applicant to be prejudiced in both his military and civilian careers.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			22 January 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				18 October 2010
d. Reason/Authority/SPD/RE Code:		AR 135-178, Chapter 7, Defective Enlistments 
and Reenlistments
e. Unit of assignment:				1st Battalion, 350th Regiment, Fort Allen, PR
f. Current Enlistment Date/Term:		7 August 2009, 6 years
g. Current Enlistment Service:		1 year, 2 months, 12 days
h. Total Service:				15 years, 3 months, 10 days
i. Time Lost:					None
j. Previous Discharges:			ARNG 930607-931011/NA
ADT    931012-941216/HD
ARNG 941217-960415/NA
RA      960416-040909/HD
     (Break in Service)
USAR  050505-050731/NA
RA       050801-070731/HD
USAR  070801-080229/GD
      (Break in Service)
k. Highest Grade Achieved:			SSG/E-6
l. Military Occupational Specialty:		88M30, Motor Transport Operator
m. GT Score:					115
n. Education:					14 Years
o. Overseas Service:				Sinai (9811010-991009-prior service)
p. Combat Service:				None
q. Decorations/Awards:			JSCM, ARCOM (5), AAM (6), AGCM (2)
NDSM (2), GWOTEM, GWOTSM, HSM
NPDR, ASR, OSR (2), MFOM
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			No
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
On 7 June 1993, the applicant joined the Army National Guard and requested enlistment in the Regular Army.  He served in the Regular Army from 16 April 1996 until he was honorably discharged on 9 September 2004.  He had a break in service and joined the Army Reserve on 5 May 2005, and was discharged on 29 February 2008, with a general, under honorable conditions discharge.  His prior service record shows he served a tour in Sinai and earned several awards that included a JSCM, ARCOM, an AAM and an AGCM.  After another break in service the applicant joined the Army Reserve for a period of 6 years which is the subject of review.  He was 46 years old at the time and had completed 14 years of academic training.  His current period of service shows he served a total of 1 year, 2 months and 12 days in the US Army Reserve.  

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 United States Army Reserve.  However, the applicant submitted a copy of the unit commander’s memorandum subject title: notification of separation proceedings under AR 135-178, Chapter 7, by reason of defective enlistment and reenlistment. 

2.  The applicant failed to provide the correct information in his enlistment packet and omitted or concealed information that, if known at the time of enlistment, would have resulted in his rejection.  The unit commander recommended separation with an under other than honorable conditions discharge and advised the applicant of his rights.

3.  The record indicates that on 13 October 2010, Department of the Army, Headquarters, 81st Regional Support Command, Fort Jackson, SC, Orders 10-286-00026, discharged the applicant from the United States Army Reserve, effective 18 October 2010, with an under other than honorable conditions discharge.  The applicant was reduced to the lowest enlisted grade. Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Discharge order from the Army Reserve with an effective date of: 18 October 2010.

2.  One negative counseling statement dated 12 December 2009, in reference to the applicant providing false or incorrect information in his enlistment packet; and the acceptance for his enlistment was based on the information he gave in his application for enlistment DD Form 4/2 (i.e., enlistment/reenlistment document for the armed forces of the United States.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a copy of his unit commander’s memorandum subject title: notification of separation proceedings under AR 135-178, Chapter 7, by reason of defective enlistment and reenlistment, DD Form 214 for the period of service ending 16 December 1994, chronological statement of his retirement points dated 29 November 2010, DA Form 4856 (i.e., developmental counseling form) dated 12 December 2009.  

POST-SERVICE ACTIVITY: 

None provided with the application.

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 his discharge; a change to the narrative reason for separation and the reentry eligibility (RE) code was carefully considered.  However, after examining the applicant’s record of service and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  The available record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army Reserve.  

2.  The applicant’s available record contains a properly constituted Order which was authenticated by the appropriate military authority.  This document identifies the characterization of the discharge and the presumption of government regularity prevails in the discharge process.  

3.  Barring evidence to the contrary, it appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the type of discharge he received from the U.S. Army Reserve.   

5.  The applicant contends that LTC J disregarded the plain language of AR 135-178, paragraph 7-4, when he discharged the applicant for fraudulent enlistment.  The applicant did not have the requisite mindset to purposely conceal his past positive urinalysis test and military service when he signed his enlistment contract.  Although the applicant should have taken time to thoroughly review the contract; this one oversight should not be enough to destroy his long and prosperous Army career.  The prejudicial error made by LTC J has unquestionably caused the applicant to be prejudiced in both his military and civilian careers. 

6.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Additionally, it appears that the rights of the applicant were not prejudiced and there was no error on file in this case.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 

7.  The character of the applicant’s discharge is commensurate with his period of service under review.  Further, 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.  Moreover, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

8.  If the applicant desires a personal appearance hearing, it will be his 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.

9.  Therefore, based on the available evidence, it appears the reason for discharge and the characterization of service were both proper and equitable, thus recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review        Date: 27 September 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 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)		AR20130001592

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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