IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 February 2014

      CASE NUMBER:  	AR20130010452
___________________________________________________________________________

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 general, under honorable conditions discharge to honorable.

2.  The applicant states, in effect, he went to drills and when he didn't go he called his NCOIC.  He let her know that he had to be in school and told her he was in the hospital because of food poisoning.  He volunteered to help with different things, passed his APFT; however, he was not allowed to go to school.  The classes were cancelled every time without an explanation.  He has been in the reserves for 12 years and there is a unit that would accept him as the first sergeant (1SG).  He needs to get his discharge upgraded in order to get this position and continue his career.  He was told by another 1SG that he was unfairly discharged because he should have been transferred to the IRR.  He has served two tours, awarded medals, and certificates to show all of his good work.  Lastly, he did not receive his separation pay.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			3 June 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				12 September 2012
d. Reason/Authority/SPD/RE Code:		Unsatisfactory Participant, AR 135-178 								Chapter 13, RE NIF, SPD NA
e. Unit of assignment:				356th Transportation Company, Las Cruces 							NM 88005		
f. Current Enlistment Date/Term:		USAR, 3 October 2011, 3 years
g. Current Enlistment Service:		11 months
h. Total Service:				12 years, 11 months
i. Time Lost:					None
j. Previous Discharges:			USN (991220-071219), NIF									RA (071220-111219), HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		68W10, Health Care Specialist
m. GT Score:					100
n. Education:					GED
o. Overseas Service:				Japan and SWA x 3
p. Combat Service:				Iraq (030130-030619, 090507-091005, and 							091202-100425)
q. Decorations/Awards:			ARCOM, AAM, NDSM, ICM-w/CS-3, AGCM  							GWOTEM, GWOTSM, NPDR, ASR, PUC 							MUC, NSSDR-2, SSDR-2, NGCM-2, NSWI 							NMCAR, CAR, NUC
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 United States Navy from 20 December 1999 through 19 December 2007.  He enlisted in the Regular Army on 20 December 2007 and served for four years.  On  3 October 2011, he enlisted in the USAR for three years.  He was 36 years old at the time of enlistment in the USAR.  He served for a total of 12 years, and 11 months of active and reserve service and attained the rank of E-4.  His record shows he was awarded an ARCOM, AAM, and several Navy awards.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 1 May 2012, 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 having accrued over nine unexcused absences from the Army Reserve training assemblies within a one year period.  He was advised of his rights via certified mail to his last known address (120501).

2.  The applicant’s election of rights is not contained in the available record.  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 1 May 2012, the unit commander recommended separation from the USAR.  The intermediate commander reviewed the proposed action and recommended a general, under honorable conditions discharge.  

3.  On 16 August 2012, the separation authority waived further rehabilitative efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions discharge.  

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

5.  The applicant was separated on 12 September 2012, under Army Regulation 135-178, Chapter 13, with a general, under 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:

Several negative counseling statements dated between 4 February 2012 and 10 June 2012, 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 online statement with his account of the events that led to his discharge from the USAR, two counseling statements, an AATAM application/course verification submission, two DD Forms 214, and discharge orders.

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 accrue 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 documents 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 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 went to drills and when he didn't go he called his NCOIC.  He let her know that he had to be in school and told her he was in the hospital because of food poisoning.  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 has been in the reserves for 12 years and there is a unit that would accept him as the first sergeant (1SG).  He needs to get his discharge upgraded in order to get this position and continue his career.  There is no basis upon which to grant an upgrade to the applicant’s discharge.  The applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility. 

6.  The applicant contends he was told by another 1SG that he was unfairly discharged because he should have been transferred to the IRR.  There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.    

7.  The applicant contends he has served two tours, has medals and certificates to show all of his good work.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct or by the multiple negative counseling statements.

8.  The applicant contends that he was not allowed to go to his MOS school even though he had passed the APFT.  The reason for the applicant not being allowed to go to school is unknown, however, the evidence of record does not show the applicant sought help or assistance with his issues from his chain of command.  

9.  The applicant contends he did not receive his separation pay.  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. 

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

11.  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:  12 February 2014     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)		AR20130010452



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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