IN THE CASE OF:  	Mr. 

      BOARD DATE:  	13 November 2013

      CASE NUMBER:  	AR2013006977
___________________________________________________________________________

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, one morning he drove to the 411 brigade upstate New York where he met with the management personnel of his unit.  After providing them with some supporting documents, he was told that he would receive a response within a week or so, which he never received and no follow-up concerning his career.  Before leaving the 1st LT that he met with and showed all his supporting documents to, told him “you do know where you are and fully understand that by commit to his unit bosses they will not be happy with his approach” and he stated yes, I know there will be retaliation for this; however, this was his life and in order for him to progress, one has to speak up on their own behalf.

3.  Subsequently, he had reached a dead end going up to brigade which produced the same results as having his unit shelve his conditional release request and ignore it, nor give him the time of day.  He called the unit around April 3rd and he received his official copy of his separation papers.  He received some VA claim forms in the mail on March 6, 2013, and he proceeded to call his platoon Sergeant to inquire what type of release he had received and was told it was a general, other than honorable, and was also told you do know why you received that type of discharge and he said yes retaliation.  He would like to reenlist.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			9 April 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				1 February 2013
d. Reason/Authority/SPD/RE Code:		AR 135-178, Chapter NIF
e. Unit of assignment:				990th Engineer Co, 3rd Platoon, Fort Dix, NJ
f. Current Enlistment Date/Term:		2 April 2009, 8 years
g. Current Enlistment Service:		3 year, 10 months
h. Total Service:				3 year, 10 months
i. Time Lost:					NIF
j. Previous Discharges:			NIF
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		NIF
m. GT Score:					NIF
n. Education:					16 Years
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NIF
r. Administrative Separation Board: 		NIF
s. Performance Ratings:			NIF
t. Counseling Statements:			NIF
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
On 2 April 2009, the applicant joined the Army Reserve for a period of 8 years beginning in the pay grade/rank as an E-4.  He was 29 years old at the time and had 16 years of education.  He served a total of 3 years and 10 months in the US Army Reserve.  According to his self authored statement and the attached letters of recommendation for the applicant to attend the Army officer Candidate School (OCS), it appears he completed basic combat training and advance infantry training and assigned to a follow on unit which is evident in the attached orders 13-028-00026, dated 28 January 2013.  Also his available record does not contain any significant awards or acts of valor. 

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 28 January 2013, Department of the Army, Headquarters, 99th Regional Support Command, Fort Dix, NJ, Orders 13-028-00026, reduced the applicant in grade of rank from a private first class E-3 to a private E-1, and discharged him from the United States Army Reserve, effective 1 February 2013, with an under other than honorable conditions discharge.  

3.  The applicant’s available record does not contain any evidence of unauthorized absences, nonjudicial punishment (UCMJ) or time lost; however, at the time of his enlistment in the US Army Reserve, he was a specialist (E-4) and order that discharged him from the Army Reserves shows him at the rank/pay grade as a private first class (E-3).   

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Discharge order.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a discharge order dated 28 January 2013, self authored statement dated 3 April 2013, and 4 letters of recommendation to the Officer Candidate School (OCS) in support of his request.

POST-SERVICE ACTIVITY: 

None were 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 was carefully considered.  However, after examining the applicant’s record of service, the issues and supporting documents he 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 one morning he drove to the 411 brigade upstate New York where he met with the management personnel of his unit.  After providing them with some supporting documents, he was told that he would receive a response within a week or so, which he never received and no follow-up concerning his career.  Before leaving the 1st LT that he met with and showed all his supporting documents to, told him “you do know where you are and fully understand that by coming to his unit bosses they will not be happy with his approach” and he stated yes, I know there will be retaliation for this; however, this was his life and in order for him to progress, one has to speak up on their own behalf.  Subsequently, he had reached a dead end going up to brigade which produced the same results as having his unit shelve his conditional release request and ignore it, nor give him the time of day. 

6.   He called the unit around April 3rd and he received his official copy of his separation papers.  He proceeded to call his platoon Sergeant to inquire what type of release he had received and was told it was a general, other than honorable, and was also told you do know why you received that type of discharge and he said yes retaliation.  He would like to reenlist.  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.  

7.  There is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  

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:  13 November 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)		AR2013006977

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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