IN THE CASE OF:  	Ms.

      BOARD DATE:  	28 April 2014

      CASE NUMBER:  	AR20130012467
___________________________________________________________________________

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 her discharge from under other than honorable conditions to honorable.  

2.  The applicant states, in effect, she has done everything she was instructed to do from the different Army Reserve units.  She wanted to stay in but she was separated without just consideration.  She received the under other than honorable discharge via email and was not informed about being discharged.  She contacted several different people trying to find a unit that she could drill with.  She has attached copies of emails from the personnel she had contact with.

DISCHARGE UNDER REVIEW INFORMATION:

a.  Application Receipt Date:		2 July 2013
b.  Discharge Received:			Under Other Than Honorable Conditions
c.  Date of Discharge:			13 August 2012				                    d.  Reason/Authority/SPD/RE Code:	Unsatisfactory Participation/AR-135-178, Chapter 13
e.  Unit of assignment:			623rd Transportation Company (CTC), West Palm 							Beach, FL
f.   Current Enlistment Date/Term:		2 February 2010, USARCG (AT), 6 years
g.  Current Enlistment Service:		2 years, 6 months, 12 days
h.  Total Service:				5 years, 1 month, 15 day
i.   Time Lost:				None								 j.   Previous Discharges:                       	ARNG (070629-070813), NA										IADT (070814-071214), HD										ARNG (071215-100201), HD										(Concurrent Service)
k.  Highest Grade Achieved:		E-2
l.   Military Occupational Specialty:	88M10, Motor Transport Operator
m. GT Score:                       		108
n.  Education:                			HS Graduate
o.  Overseas Service:   			None
p.  Combat Service:      			None
q.  Decorations/Awards:           		NDSM, ASR
r.  Administrative Separation Board:  	No
s.  Performance Ratings:              		No
t.  Counseling Statements:              	No
u.  Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant enlisted in the ARNG on 29 June 2007, for a period of 8 years.  She was 24 years old and a high school graduate at the time of entry.  She was discharged from the ARNG on 1 February 2010, with an honorable discharge and transferred to the USAR Control Group (Annual Training) to complete her reserve military service obligation.  She was trained in and awarded military occupational specialty (MOS) 88M10, Motor Transport Operator.  The applicant’s record does not show any significant achievements or acts of valor.  She completed 5 years, 1 month, and 15 days of active and inactive service.    

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 29 February 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 missing at least 9 training assemblies (111105-120205) within a one year period and failing to provide a valid excuse for her absences, with an under other than honorable conditions discharge.  She was advised of her rights via certified mail to her last known address (120229). 

2.  The applicant’s unexecuted election of rights is 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 with the opportunity to exercise her right to consult with legal counsel.  On 26 April 2012, the unit commander recommended separation from the USAR.  The senior commander reviewed the proposed action and recommended an under other than honorable conditions discharge.  

3.  The applicant did not request and was not granted an extension; she failed to respond within the 30 calendar days of the date of her receipt of this memorandum which constituted a waiver of her rights.

4.  On 3 August 2012, the separation authority waived further rehabilitative efforts and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank. 

5.  The record contains documentation that shows the unit contacted the applicant on several occasions and she refused to come in, as instructed.

6.  The applicant was separated on 13 August 2013, under provisions of Army Regulation 135-178, Chapter 13, with an under other than honorable conditions discharge.

7.  The record does not contain any documented record of unauthorized absences, time lost, or any actions under Article 15 of the Uniform Code of Military Justice (UCMJ).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Reduction/Discharge Orders 12-221-00070, dated 8 August 2012.

2.  Enlistment/Reenlistment Document, dated 29 June 2007.

3.  Memoranda, letter of instructions for unexcused absences, dated 15 November 2011, 6 December 2011, and 10 January 2012.

Three counseling statements dated from 2 July 2012 thru 26 April 2012, for unsatisfactory participation; in that she missed multiple scheduled battle assemblies, and counseled in reference to her discharge.   

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, Discharge/Reduction Orders 12-221-00070, NGB 22, numerous email correspondence, and case separation documents.

POST-SERVICE ACTIVITY: 

The applicant did not provide any with her 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.  

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 her discharge was carefully considered.  However, after examining the applicant’s record of service, her 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 her 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 her refusal to participate in unit drills, the applicant diminished the quality of her 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 she was unjustly discharged with an under other than honorable conditions discharge from her Army Reserve unit; due to the fact that she was not notified.   The applicant bears the burden of presenting substantial and credible evidence to support this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that she was unjustly discharged.  The evidence of record shows that the applicant was notified and failed to respond to the correspondence within the 30 days of her receipt of the notification of her proposed separation.  

5.  The applicant further contends she contacted several different people trying to find a unit that she could drill with.  She attached copies of emails from the personnel that she had dealt with.  However, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with her overall service in the Reserves. 

6.  Additionally, a review of the emails shows the applicant stated, in effect, that she was missing drills due to having moved too far away, could not find another unit closer, could not afford to fly or was too far along in her pregnancy and was responsible for her family as a mother.  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.

7.  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:  28 April 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel: NA

Witnesses/Observers: NA 

Board Vote:
Character Change:  1	No Change:  4
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new Discharge Order:	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)		AR20130012467



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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