IN THE CASE OF:  	Mr. 

      BOARD DATE:  	10 March 2014

      CASE NUMBER:  	AR20130014497
___________________________________________________________________________

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 notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service based on the circumstances surround the discharge and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. 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-4/SPC.




      
      
      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, a change to the narrative reason for separation, and restoration of his pay grade to E-4.

2.  The applicant states, in effect, his motivation to join the US Army Reserve (USAR) in November 2007 was to fulfill a deep desire to serve his country.  He felt his education and experience would be of great use in the global war on terrorism.  He was due to deploy, but unbeknownst to him he had been issued a P-3 profile for asthma which barred him from deployment.  He states he was told to return to his unit to drill in May 2009.  He contends he was disqualified for attendance to Army schools, promotion, and was unable to do anything other than attend drill.  He contends in July 2009, he was notified that as a result of a medical determination, he was disqualified for continued service in the USAR under the provisions of AR 40-501, Chapter 3, however, he could submit an appeal before 14 August 2009.  He states he submitted the appeal and upon returning to drill in August he inquired on the status of his paperwork.  He states he was told his packet had not been submitted before the suspense and that constituted a waiver of his right of review and he was to be discharged with an honorable characterization of service.  He was able to get his appeal sent forward for review, but after weekly status updates he had no response.  He contends he continued to attend battle assembly from September 2009 through May 2010.  He contends after not hearing a response to his appeal, he resubmitted the paperwork requesting a medical discharge.  He began to out-process the unit. He contacted the unit and provided his new address and did not hear anything from the unit and months went by with no contact from the unit.  He began working as a civilian contractor and continued to attend drill.  He contends he kept the unit informed of his change of addresses and was told they would contact him, if needed.  He states it was only after going through a security clearance investigation did he learn he was administratively separated from the military.  He would like an upgrade of his discharge in order to obtain employment with the Central Intelligence Agency (CIA).
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			5 August 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				24 July 2012
d. Reason/Authority/SPD/RE Code:		Unsatisfactory Participation, AR 135-178, 
							Chapter 13, SPD NA, RE NA
e. Unit of assignment:				A Company, 323 Military Intelligence Battalion, 
Fort Meade, MD
f. Current Enlistment Date/Term:		20 November 2007/8 years
g. Current Enlistment Service:		4 years, 8 months, 5 days
h. Total Service:				4 years, 8 months, 5 days
i. Time Lost:					20 UTAs
j. Previous Discharges:			IADT, 080124-080814, HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		35F10, Intelligence Analyst
m. GT Score:					118
n. Education:					College Graduate
o. Overseas Service:				NIF
p. Combat Service:				NIF
q. Decorations/Awards:			NIF
r. Administrative Separation Board: 		NA
s. Performance Ratings:			NA
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the USAR on 20 November 2007 for a period of 8 years.  He was 24 years old at the time of entry and a college graduate.  He served a total of 4 years, 8 months, 5 days of military service and attained the rank of SPC/E-4.  His record did not contain any significant awards or acts of valor.  When his discharge proceedings were initiated, he was serving at Fort Meade, Maryland.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 9 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 missing at least nine or more unexcused absences from scheduled inactive duty training during a one year period, with an under other than honorable conditions discharge.  He was advised of his rights via certified mail to his last known address on 11 May 2012.

2.  The unit commander indicated in the notification letter that he was suspending the separation action for 30 days, to allow the applicant with the opportunity to exercise his right to consult with legal counsel.  On 19 May 2012, 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.  On 10 July 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 and reduced the grade of E-1.

4.  The record contains documentation that shows the unit contacted the applicant on several occasions and he did not report, as instructed.

5.  The applicant was separated on 18 July 2012, under Army Regulation 135-178, Chapter 13, with an under other than honorable conditions discharge.

6.  The applicant’s record shows he had 20 unexcused absences from scheduled inactive duty training.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Two DA Forms 4856 (Developmental Counseling Form), dated 11 May 2012 and 
4 January 2012, for unsatisfactory participation, and exit counseling from the USAR.

2.  Five Letters of Instruction, dated 8 December 2010 through 18 April 2011, indicating the unit contacted the applicant at his last known address on file regarding his unexcused absences. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149, dated 25 July 2013, an undated self-authored statement addressing his contentions, a Notification of Medical Unfitness, dated 1 July 2009, a DA Form 3349 (Physical Profile), dated 8 March 2010, a letter from the office of Congressman P, dated 22 September 2009, a letter from Deputy Chief of Staff, G1, HQs, USARC, Fort McPherson, Georgia, dated 17 September 2009, Reduction/Discharge Orders 12-200-00076, HQs, 99th Regional Support Command (RSC), Fort Dix, New Jersey, dated 18 July 2012, and 10 statements in support of his petition.

POST-SERVICE ACTIVITY: 

The applicant states he has served as a civilian contractor and was offered a position with the CIA.

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 and restoration of his rank to E-4 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 that 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 he out-processed the unit and was waiting on a response to his request for a medical 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.  

5.  The applicant requests reinstatement of his rank.  However, 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. 

6.  The applicant contends that an upgrade of his discharge will allow him to obtain better employment with the CIA.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

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: 10 March 2014     Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel: No

Witnesses/Observers: None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Letter from SFC JRD – 1 page
	b.  Letter from CIR Recruitment Center – 1 page
	c.  Letter from Dr and Mrs WRH, III – 1 page
	d.  DoD letter sent to parents – 1 page

2.  The applicant presented the additional contention:

	a.  Change the narrative reason to Secretarial Authroity.

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





















Board Vote:
Character Change:  3	No Change:  2
Reason Change:	1	No Change:  4
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Issue a new Discharge Order:  	Yes
Change Characterization to:  	General, Under Honorable Conditions (GD)
Change Reason to:  		NA 
Change Authority to:  		NA
Change RE Code to:  		NA
Grade Restoration to:  		E-4/SPC
Other: TO: ARBA Promulgation Team. Arlington, VA                        Date: 10 March 2014

     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-4/SPC

Minority Report

SAMR-RB                                                                                             19 March 2014


MEMORANDUM THRU President, Military Review Board
     FOR Deputy Assistant Secretary of the Army (Review Boards)


SUBJECT:  Minority Opinion—Army Discharge Review Board Case AR20130014497, Harden, Wesley C. IV


1.  The Army Discharge Review Board considered Mr. Harden’s case in a personal appearance hearing 10 March 2014 and by a majority vote granted Mr. Harden partial relief in the form of an upgrade of his characterization of service to general under honorable conditions as a matter of equity.  I find found this action to be insufficient as the Board erred in not granting Mr. Harden an upgrade in his characterization of service to honorable as a matter of propriety.  The record clearly shows fatal errors by the chain of command which resulted in Mr. Harden not receiving the honorable discharge to which he was entitled in accordance with Chapter 2-9a of AR 135-178 after being notified he was found medically unfit for continued service under Chapter 3, AR 40-501 and that he would receive an honorable characterization of service as a result.  Following the board, a legal opinion was requested by Mr. Jan Serene who responded in part “If I were voting the case, I would find the reason was improper and change the reason to Secretarial Authority with an HD” based not on a question of legality, but on a finding of fact.

2.  Key Facts.  

      a.  Mr. Harden was a drilling reservist assigned to the 323d Military Intelligence Battalion, Military Intelligence Reserve Command (MIRC) at Fort Meade, MD.  On 01 July 2009, the Headquarters, 99th Regional Support Command (RSC) issued a memorandum through the commander of Company A, 323d Military Intelligence Battalion informing that Mr. Harden was medically unfit for continued service under the provisions of AR 40-501, Chapter 3 and outlining his options.  Those options were requesting a reassignment to the Retired Reserve if eligible, requesting an honorable discharge from the Army Reserve, or requesting a review of his case by Physical Evaluation Board (PEB).  The memorandum further stated that if Mr. Harden did not make a decision by 14 August 2009 or if he failed to submit all proper documentation by the suspense date this would be considered a waiver of his rights and he would be separated from the Army Reserve with an honorable discharge.  In his sworn testimony to the board, Mr. Harden stated he opted to pursue the PEB.  Further, he testified he did not pursue the PEB option through his chain of command or NCO support channel.  
      
b.  Mr. Harden failed to properly pursue the PEB.  There is no record of his submitting any documentation prior to the suspense date and his testimony shows he engaged the assistance of the battalion’s operations sergeant major in his efforts.  Of note, the sergeant major was not in Mr. Harden’s chain of command—he held a staff position in the battalion headquarters and while he could have provided some recommendations to Mr. Harden, he was not in Mr. Harden’s NCO support channel or his chain of command.  While oral testimony shows an effort to “fight” the separation through the PEB process, the record is void of any evidence of any requests or document submissions required by the notification memorandum prior to the suspense date.  By failing to submit a request or documentation to the chain of command—the entity responsible for ensuring the request was acted upon--prior to the suspense date, Mr. Harden effectively waived his rights as specified in the notification memorandum.  His waiving of his rights in this manner should have resulted in the 99th RSC initiating his separation with an honorable discharge as stated in the notification memorandum.  In failing to do so, the command was derelict in the performance of its duties.  This dereliction would ultimately result in Mr. Harden being improperly separated.

      c.  According to oral testimony, the company commander (CPT Chin-Zeruto) directed Mr. Harden to start outprocessing the unit in June 2009.  In July 2009, the unit administrator contacted Mr. Harden and informed him that outprocessing was” moving along” and that he needed to report to the unit to take care of some administrative requirements.  The unit administrator allegedly stated Mr. Harden was going to be medically separated and that he did not need to continue drilling.  These claims are partially substantiated by a 10 November 2009 facebook posting by the then-commander who stated “…I recall seegin (sic) your name somewhere—which sleighs (sic) me, as I thought you were off our books.”  This same posting also informs Mr. Harden that CPT Shin-Zeruto has relinquished command of the company to another officer.
      
      d.  On 18 July 2012, the 99th RSC issued orders both reducing Mr. Harden to Private, E-1 and separating from the US Army Reserve with an other than honorable characterization of service effective 24 July 2012.  This date is 36 months after this same headquarters issued the notification of unfitness for service memorandum directing an honorable characterization of service if Mr. Harden did not execute a request for a PEB.

3.  After the Board received Mr. Serene’s referenced opinion, the Board voted 2-2-1 (two votes for an honorable characterization of service, two votes for a general characterization of service and one vote for no change to the issued under other than honorable conditions)  to deny satisfactory relief.  I find this outcome to be improper based on Mr. Serene’s findings of fact that warrant an upgrade of his characterization of service to honorable and a narrative reason of Secretarial Authority.  
      
4.  I recommend that the current Board action (upgrade to general characterization of service as a matter of equity) be invalidated and replaced with an upgrade to honorable as a matter of propriety as the facts show the unit failed to meet the requirements of AR 135-178 by failing to initiate an honorable discharge after Mr. Harden waived his rights to a PEB in August 2009.  Instead of properly separating Mr. Harden, the unit improperly retained Mr. Harden and then led him to believe he was being properly separated despite his waiving his rights for an additional 10 months.  Finally, after failing to perform its regulatory requirements in 2009, and after new leadership was assigned to the unit long after Mr. Harden had been informed he was being medically separated, the unit separated Mr. Harden with an other than honorable conditions characterization of service 35 months after the proper separation should have been initiated.  This failure represents dereliction on the part of the command, the cost of which is currently being borne by Mr. Harden.

5.  POC this memorandum is the undersigned.

						[original signed]
						
      [Redacted]
						COL, MI
						Board Member






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)		AR20130014497



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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