IN THE CASE OF:  	Mr. 

      BOARD DATE:  	23 September 2013

      CASE NUMBER:  	AR20130006370
___________________________________________________________________________

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 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, and change the reason for separation code.

2.  The applicant states, in effect, that he had no intentions of being disloyal to his unit when he rejoined the military ranks just a year after his honorable discharge from the Texas Army National Guard.  He did not see the event that happened in his personal life coming or he would have been able to prevent them.  He wants to rejoin his brothers and sisters in arms and finish his career honorably.  The events that took place were out of his control and when he was able to finally get hold of his unit because they had moved, his discharge was already done, he had been reduced from SGT/E-5 to PVT/E-1, and had received a less than honorable conditions discharge.  His career before the discharge was excellent.  He just wants to serve his country as he did before.  He wants nothing more than to wear his uniform again and lead Soldiers the way his NCO’s taught him to lead.    
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			27 March 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				10 May 2011
d. Reason/Authority/SPD/RE Code:		Unsatisfactory Participant, AR 135-178 								Chapter 13, RE NIF, SPD NA
e. Unit of assignment:				1st Bn(-), 355th Regt, Round Rock, TX		
f. Current Enlistment Date/Term:		29 October 2009, 6 years
g. Current Enlistment Service:		1 year, 6 months, 11 days
h. Total Service:				9 years, 9 months, 2 days
i. Time Lost:					None
 j.	Previous Discharges:			ARNG 000509-000604/NA											RA 000605-000915/HD											ARNG 000916-020731/NA											RA 020801-030731/HD											ARNG 030801-040814/NA											RA 040815-041215/HD											ARNG 041216-050507/NA											RA 050508-060111/HD											ARNG 060112-080728/HD
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		11C20 Indirect Fire Infantryman
m. GT Score:					102
n. Education:					HS Grad 
o. Overseas Service:				SWA
p. Combat Service:				Iraq (050601-051206)
q. Decorations/Awards:			ARCOM-2, AAM-2, NDSM-2, GWOTSM 								AGCM, AFRM w/M x 2, ASR, OSR
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			No
u. Prior Board Review:				Yes
SUMMARY OF SERVICE:		
	
The applicant served in the Army National Guard and brief periods in the Regular Army.  On 29 October 2009, the applicant reenlisted in the Army National Guard for a period of 6 years.  He was 32 years old at the time of entry and a high school graduate.  He served for a total of 9 years, 9 months, and 2 days of active and inactive service and attained the rank of SGT/E-5.  His record contains two ARCOMs and two AAMs.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 12 October 2010, 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 (101012).

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 the opportunity to exercise his right to consult with legal counsel.  On 30 January 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.  The record contains documentation that shows the unit attempted to contact via certified mail on 12 October 2010 to his last known address; however, the applicant failed to respond. 

4.  On 10 May 2011, the separation authority waived further rehabilitative efforts and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Two unsatisfactory Noncommissioned Officer Evaluation Reports (NCOERs), 061201-071130 and 091116-101115.  Both of the NCOERs noted the applicant’s leadership shortcomings and his failure to report to duty on at least 12 occasions.

EVIDENCE SUBMITTED BY THE APPLICANT:

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

POST-SERVICE ACTIVITY: 

None were 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 that he was having mitigating issues that were out of his control which affected his behavior and ultimately caused him to be discharged.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

5.  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.

6.  The applicant desires to rejoin the Military Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

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:  Personal Appearance  Date: 23 September 2013  Location: Washington, DC

Did the Applicant Testify?  Yes???? 

Counsel:  None

Witnesses/Observers: ?Yes, friend???? 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

The applicant submitted no additional documents or contentions.

In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing.

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)		AR20130006370



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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