IN THE CASE OF:  	Mr. 

      BOARD DATE:  	25 June 2014

      CASE NUMBER:  	AR20140001742
___________________________________________________________________________

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 general, under honorable conditions.

2.  The applicant states, in effect, he was not given his due process and was forced not to attend drill.  He contends his discharge was unfair because after he was charged with driving under the influence, his chain of command informed him not to attend drill because of the embarrassment to the unit.  He states his commander told him if he attended he would not be able to sign in on the attendance roster.  He contends the Special Assistant United States Attorney General Law Division-Picatinny Arsenal Legal Office, was assisting him with reintegrating with his unit for over a year with no success.  He states his unit administrator did not comply with any requests from his attorney, recruiter, or Inspector General.  He contends he was never sent the proper documents notifying him of his rights but instead found out about his discharge through IPERMS.  He desires to rejoin military service.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			23 January 2014
b. Discharge Received:			Under Other Than Honorable Conditions 
c. Date of Discharge:				14 August 2013
d. Reason/Authority/SPD/RE Code:		Unsatisfactory Participation, AR 135-178, NA, 
NA
e. Unit of assignment:				349th Military Police Company, Fort Totten, NY
f. Current Enlistment Date/Term:		7 October 2010/NIF
g. Current Enlistment Service:		NIF
h. Total Service:				NIF
i. Time Lost:					None
j. Previous Discharges:			ADT, 110126-110616, HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		31B10, Military Police
m. GT Score:					NIF
n. Education:					Some College
o. Overseas Service:				NIF
p. Combat Service:				NIF
q. Decorations/Awards:			NDSM, ASR
r. Administrative Separation Board: 		NIF
s. Performance Ratings:			NA
t. Counseling Statements:			Yes
u. Prior Board Review:				No


SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 7 October 2010, the specific enlistment years of service is unknown.  He was 21 years old at the time of entry and had some college.  His record is void of the specific information regarding the period of service under review.  When his discharge proceedings were initiated, he was serving at Fort Totten, New York.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 5 June 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 scheduled IDT within a one year period and failing to provide a valid excuse for his absences, with an under other than honorable conditions discharge.  He was advised of his rights via certified mail to his last known address (120612).

2.  The applicant’s unsigned election of rights form was found in the available record.   However, 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 24 July 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 30 July 2013, 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 be reduced to the grade of E-1.

4.  The record contains documentation that shows the unit attempted to contact the applicant on several occasions at his last known address, and he did not respond to the letter of instructions.

5.  The applicant was separated on 14 August 2013, under Army Regulation 135-178, Chapter 13, with an under other than honorable conditions discharge and reduced to the lowest enlisted grade of E-1.

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Certified Mail reflects the unit mailed the applicant instructions on four occasions (120126, 120302, 120502, and 130531). 

2.  An affidavit of service by mail reflects that SSG M mailed a notification of separation proceedings under AR 135-178, Chapter 13, to the applicant on 12 June 2012.

3.  Five letters of instructions dated between 26 January 2012 and 18 June 2012, informing the applicant of his absences from multiple unit training assemblies.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 21 January 2014, Discharge and Reduction Orders Number 13-219-00017, dated 7 August 2013, an undated self-authored statement, and email messages.

POST-SERVICE ACTIVITY: 

The applicant states he earned a Bachelor of Arts Degree in Criminal Justice.   

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.  

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, 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 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 was never sent the proper documents notifying him of his rights but instead found out about his discharge through IPERMS.  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 contends he sought assistance from the Inspector General, his recruiter, and the United States Attorney General, Picatinny, New Jersey in making contact with his unit; however, the record does not contain any indication or evidence of arbitrary or capricious actions by the command.  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 his overall service record.  

6.  The applicant requests a change to the characterization of his service in order to rejoin the Army.  However, 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.  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:  Records Review      Date:  25 June 2014        Location: Washington, DC

Did the Applicant Testify?  No

Counsel:  None

Witnesses/Observers:  No

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 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)		AR20140001742



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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