IN THE CASE OF:  	Mr. 

      BOARD DATE:  	26 August 2013

      CASE NUMBER:  	AR20130004427
___________________________________________________________________________

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 to be 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 fully honorable.

2.  The applicant states, in effect, there are discrepancies with his discharge that can only be explained in person.  He requested a review and disagrees with the decision.  He would like to present his case in person.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		4 March 2013
b. Discharge received:			Under Other than Honorable Conditions
c. Date of Discharge:			11 March 2005
d. Reason/Authority/SPD/RE:		Alcohol or Other Drug Abuse,  Paragraph 8-26(2)a, 						NGR 600-200, NA, RE-3
e. Unit of assignment:			A Co, 152d Engineer Battalion, Niagara Falls, NY
f. Current Enlistment Date/Term:  	27 December 2002, 6 years
g. Current Enlistment Service:  	2 years, 2 months, 15 days
h. Total Service:			6 years, 2 months, 26 days
i. Time Lost:				None
j. Previous Discharges:		ARNG (981216-991226), NIF									IADT (990106-990422), UNC									RA (991227-021226), HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	12B10, Combat Engineer
m. GT Score:				101
n. Education:				GED
o. Overseas Service:			Kuwait
p. Combat Service:			None
q. Decorations/Awards:		ARCOM, AAM-2, NDSM, AFEM, ASR, OSR
r. Administrative Separation Board: 	None
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			17 December 2010, denied
SUMMARY OF SERVICE:		
	
The applicant’s record shows he served in the Army National Guard (ARNG) from 1998 until 1999 when he joined the Regular Army where he served until December 2002.                      On 27 December 2002, he rejoined the ARNG for a period of 6 years.  He was 24 years old at the time and had a high school equivalency (GED).  His record shows several awards including an ARCOM and 2 AAMs.


SEPARATION FACTS AND CIRCUMSTANCES

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

2.  The record shows that on 29 March 2005, Joint Force Headquarters, Office of the Adjutant General, State of New York, Latham, NY, Orders Number 088-1028, discharged the applicant from the Army National Guard and as a Reserve of the Army, effective date 11 March 2005, 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 paragraph         8-26(2)a, NGR 600-200, by reason of alcohol or drug abuse, with a characterization of service of under other than other conditions, and a reenlistment eligibility (RE) code of 3.

4.  On 4 February 2009, The Director of Military Personnel, State of New York Army National Guard, reviewed the applicant’s request for a change in his discharge and denied his request. The memorandum indicates that on 12 November 2004, the applicant was formally notified of his failure of a urinalysis and he waived his right to a hearing by failing to make an election of rights as stipulated by the certified mail sent to him.  Additionally, the applicant failed to appear before a unit level counseling board on 2 November 2004 for continuous and willful absence.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

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

EVIDENCE SUBMITTED BY THE APPLICANT 

Awards, certificate of service, certificate of recognition, online application, ARNG’s decision memorandum for a discharge review, mental health screening, and substance abuse program documents (17 pages).

POST-SERVICE ACTIVITY: 

None were provided with the application.

REGULATORY AUTHORITY  

1.  National Guard Regulation (NGR) 600-200 and Army Regulation 135-78 govern procedures covering enlisted personnel management of the Army National Guard.  Chapter 8 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army Reserve National Guard.  Paragraph 8-26 of that regulation provides in pertinent part that individuals can be separated for alcohol or other illegal drug abuse.

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.  

3.  Army Regulation 135-178, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

4.  The regulation also provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

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 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 or a change to the reason for the 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 identifies the reason and characterization of the service.  The NGB Form 22 shows the applicant was discharged under the provisions of Chapter 8, paragraph 8-26(2)a, NGR 600-200, by reason of alcohol or other drug abuse 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.  It is the applicant’s responsibility to meet the burden of proof since the discharge packet is not available in the official record. 

5.  The applicant provided documentation from the New York ARNG, which indicates that on 4 February 2009, his request for a change in his discharge was denied.

6.  The applicant requested a change to the narrative reason for his discharge.  However, Army National Guard Regulation 600-200 provides the specific authorities (regulatory or directive), reasons for separating Soldiers to be entered on the NGB Form 22.  It identifies the reason as “Alcohol or Other Drug Abuse,” as the appropriate entry to assign enlisted Soldiers who are discharged under these provisions.  The regulation further stipulates that no deviation is authorized.  

7.  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:  Personal Appearance    Date:  26 August 2013      Location: Washington, DC

Did the Applicant Testify?   Yes

Counsel:  None

Witnesses/Observers:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE

1.  The applicant submitted no additional documents:

2.  The applicant presented the additional contention:

	a.  Change the Reenlistment Eligibility (RE) Code to 1.

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:  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 RE Code to:		No Change
Grade Restoration to:		NA
Change Authority for Separation:	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	UOTH - Under Other Than                           			               Honorable
ADRB Case Report and Directive (cont)		AR 20130004427		


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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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