IN THE CASE OF:	Mr. 

      BOARD DATE:  	25 September 2013

      CASE NUMBER:  	AR20130006562
___________________________________________________________________________

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 that the characterization of service was too harsh based on the circumstances surrounding the events that led to his discharge, and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions or honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it.  This action entails restoration of grade to E-2/PV2.




      
      
      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, in effect, to have his discharge record changed.  He did not properly annotate the enclosed application requesting a possible discharge upgrade.  However, the Army Discharge Review Board would consider the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge.

2.  The applicant, in his self-authored statement and in pertinent part, states, in effect, the error and injustice pertaining to his discharge resulted when he attempted to go active duty.  Although his discharge was in 2010, in the past two years, he has been doing everything to get help with his discharge.  He wrote letters and e-mails to the Reserve component chain of command, senators, congressmen, and local leaders, as well as, to the President.  He was informed that he was done wrong by his unit, but there was nothing they could do, and subsequently, he was informed that his only option was the Army Review Board.  The Board was his last resort.  He desires to finish his enlistment on active duty process, which he initiated through his recruiter while in the Reserve.  When his recruiter informed him that it would be a two to three week process, he resigned from his job with the railroad, sold his car, and broke his apartment rental lease; however, it led into an eight to nine-month process.  He was unable to attend his drill a few months after he was no longer able afford the rental car and travel expenses to a three-day monthly drill, which was a hundred miles away.  His unit did not provide hotel rooms for Soldiers who did not reside within commuting distance until he informed his reserve career counselor.  While he waited to go on active duty, he never complained and continued to go to drill; volunteered for early convoys; was always in the top five in APFT tests; stayed late to help clean up; and arrived early to drill.  In September 2008, when he informed his recruiter that he was ready to go to MEPs, he was informed that a new rule that all Reserve Soldiers must have served two years before going on active duty went into effect on 1 September 2008.  He worked with his career counselor and applied again for a release from Reserve duty.  He also received his unit’s permission to drill with a local MP unit; however, when the MP unit contacted his unit to obtain the appropriate documents, his unit informed the MP unit that there was no permission for him to drill with the MP unit.  During that period, he started receiving absent drill notices from his unit and subsequently, his discharge paper work.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	1 April 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	12 November 2010 
	d.	Reason/Authority/SPD/RE Code:	AR 135-178
	e.	Unit of assignment:	306th EN Co, 1st Platoon, Farmingdale, NY1596359
	f.	Current Enlistment Date/Term:	21 February 2007, 8 years
	g.	Current Enlistment Service:	3 years, 8 months, 22 days
	h.	Total Service:	3 years, 8 months, 22 days
	i.	Time Lost:	NIF
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	12W10, Carpentry and Masonry Specialist
	m.	GT Score:	NIF
	n.	Education:	HS Graduate
	o.	Overseas Service:	NIF
	p.	Combat Service:	NIF
	q.	Decorations/Awards:	NIF
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Army Reserve on 21 February 2007, for a period of 8 years.  He was 25 years old at the time of entry and a high school graduate.  His record documents no acts of valor or significant achievement.  He served a total of 3 years, 8 months, and 22 days in the US Army Reserve

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The available evidence shows 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.  

2.  The record indicates that on 5 November 2010, Department of the Army, Headquarters, 99th Regional Support Command, Fort Dix, NY, Orders 10-309-00038, discharged the applicant from the United States Army Reserve, effective 12 November 2010, with an under other than honorable conditions discharge.

3.  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 orders.  

2.  The discharge orders reflect his rank as Private E-2.  However, the documents he provided shows being addressed as private first class E-3; however, there is no record to show a reduction in grade.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with his self-authored statement, dated 27 March 2013, discharge orders, dated 5 November 2010; his contact information; MSG V’s contact information; counseling statement, dated 26 March 2008, rendered by career counselor; applicant’s statement, dated 26 February 2009; DD Form 368, dated 24 November 2008, further endorsed with 1LT A on 26 February 2008; DA Form 4187, dated 25 November 2008, endorsed by 1LT on 26 February 2008; counseling statement, dated 26 February 2009, rendered by CPT A; counseling statement, dated 26 March 2010, rendered by CPT W; notification memorandum, dated 26 March 2010, rendered by CPT W with UOTH recommendation and an incomplete response memorandum; notification memorandum, dated 13 February 2009, rendered by 1LT A with GD recommendation and incomplete response memorandum; affidavit of service by mail, dated 13 February 2009, with 1LT A’s administration of oath; counseling statement, dated 26 February 2009, rendered by reserve career counselor; certificates of achievement for being an honor graduate, dated 18 May 2007; certificate of achievement, undated; and Outstanding Physical Readiness Award certificate, undated.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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 and changes to the record of his discharge was carefully considered.  However, after examining the applicant’s record of service, and the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  The service 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 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 insufficient 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 the events and circumstances surrounding the process with attempting to be released from the Army Reserve for enlistment in the Regular Army, and subsequently subjecting him to be unemployed and over a hundred-mile traveling distance to his drill without funds led him to the current discharge under review.  His contentions were carefully considered.  However, 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.  If the applicant desires a personal appearance hearing, it will still be his responsibility to meet the burden of proof since the discharge packet is not available in the official record. 

6.  The applicant contends while he was in the process of enlisting in the Regular Army, he was never informed about his imminent discharge with an under other than honorable conditions discharge.  However, the documents he provided 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.  To that extent, any and all documented evidence, such as documented drills with local units may be considered by the Board should he desire a personal appearance hearing.  

7.  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 at this time.


SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review      Date:  25 September 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  3	No Change:  2
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:	General, Under Honorable Conditions
Change Reason to:			NA
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		E-2/PV2
Other: TO: ARBA Promulgation Team. Arlington, VA                      Date: 25 September 2013

     The Army Discharge Review Board, under the provisions of Title 10, United States Code, Section 1553, in the case of the applicant named in page 1, directs the ARBA Promulgation Team, Arlington, VA to issue a new discharge order to the applicant which reflects the following directed changes:

           ( X  )	Change characterization of discharge to General, Under Honorable Conditions.
           ( X  )	Restoration of grade to E-2/PV2










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)		AR20130006562



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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