IN THE CASE OF:  	Mr.

      BOARD DATE:  	31 May 2013

      CASE NUMBER:  	AR20130001792
___________________________________________________________________________

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.

2.  The applicant states, in effect, he was accused of being an unsatisfactory participant and when he attempted to complain to the Inspector General or to the Staff Judge Advocate, his chain of command refused to allow him to contact either of them.  He requests a full investigation of his discharge and asks for the reinstatement of his rank. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			26 January 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				7 June 2012
d. Reason/Authority/SPD/RE Code:		Unsatisfactory Participant, AR 135-178, 									Chapter 13, RE NIF, SPD NA
e. Unit of assignment:				341st MP Company, Mountain View, CA		
f. Current Enlistment Date/Term:		9 April 2008, 6 years
g. Current Enlistment Service:		4 years, 2 months, 0 days
h. Total Service:				6 years, 2 months, 11 days
i. Time Lost:					None
j. Previous Discharges:			ARNG (040416-050202), UNC										RA (061018-080111), HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		88M10, Motor Transportation Specialist
m. GT Score:					104
n. Education:					College Degree
o. Overseas Service:				Alaska
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant served in the Army National Guard and a brief period in the Regular Army.  On 9 April 2008, the applicant reenlisted in the Army Reserve for a period of 6 years.  He was 29 years old at the time of entry and a college graduate.  He served for a total of 6 years, 2 months, and 11 days of active and inactive service and attained the rank of CPL/E-4.  His record does not contain any significant awards or acts of valor.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 28 September 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 13, AR 135-178, by reason of unsatisfactory participation, for missing at least 9 training assemblies within a one year period and failing to provide a valid excuse for his absences, with an under other than honorable conditions discharge.  He was advised of his rights via certified mail to his last known address (110928).

2.  The applicant’s election of rights is not contained in the available record.  However, the unit commander indicated in the notification letter that he was suspending the separation action for 45 days, to allow the applicant with the opportunity to exercise his right to consult with legal counsel.  On 14 November 2011, the unit commander recommended separation from the US Army Reserve (USAR).  The intermediate commander reviewed the proposed action and recommended an under other than honorable conditions discharge.  

3.  On 23 May 2012, the separation authority waived further rehabilitative efforts and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

4.  The record contains documentation that shows the unit contacted the applicant on several occasions and he refused to come in, as instructed.

5.  The applicant was separated on 7 June 2012, under Army Regulation 135-178, Chapter 13, with an under other than honorable conditions discharge,.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Three negative counseling statements dated between 9 July 2011 and 16 September 2011, for failure to report for training and unexcused absences which were not signed by the applicant.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a detailed self-authored statement with his account of the events that led to his discharge from the USAR.

POST-SERVICE ACTIVITY: 

None provided with the application.




REGULATORY AUTHORITY:

1.  Army Regulation 135-178 governs procedures covering enlisted personnel management of the Army Reserve.  Chapter 13 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 acrue 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.   

2.  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.  

DISCUSSION AND RECOMMENDATION:

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

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 military personnel.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By his refusal to participate in unit drills, the applicant diminished the quality of his service below that meriting a general, under honorable conditions or an honorable discharge.  

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 contends he was never informed about his imminent discharge.  However, the record shows the unit commander attempted to contact the applicant on several occasions and mailed the discharge packet to his last known address via certified mail.  Army Regulation 135-178, in pertinent part, stipulates that a Soldier is subject to discharge for unsatisfactory participation when it is determined the Soldier is unqualified for further military service because the Soldier is an unsatisfactory participant as prescribed in Chapter 4, AR 135-91 and attempts to have the Soldier respond or comply with orders or correspondence have resulted in the Soldier’s refusal to comply with such orders or correspondence; or a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; or verification that the Soldier failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed.

5.  The applicant contends he was not given the opportunity to seek assistance from the Inspector General of the Staff Judge Advocate; however, the record does not contain any indication or evidence of arbitrary or capricious actions by the command.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record.  

6.  The applicant requests reinstatement of his rank.  However, the applicant’s requested change does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 

7.  The records show the proper discharge and separation authority procedures were followed in this case and an under other than honorable conditions discharge is normally considered appropriate.  

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

























SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review	Date:  31 May 2013		Location: Washington, DC

Did the Applicant Testify?  NA

Counsel: None

Witnesses/Observers: NA 

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:	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)		AR20130001792



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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