IN THE CASE OF:	Mr. 

      BOARD DATE:	10 June 2014

      CASE NUMBER:	AR20140004313
___________________________________________________________________________

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 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 to upgrade the characterization of his service from under other than honorable to general, under honorable conditions.

2.  The applicant states, in pertinent part and in effect, that in October 2009, his 1SG granted him a leave of absence to deal with personal and financial issues involving separation from his wife and son.  Serious emotional issues caused him to drink heavily on a daily basis.  In April 2010, his part-time employment ended due to a hospital closure.  Although he reconciled with his wife, the difficult times and his emotional issues continued.  His financial issues forced him to file for bankruptcy in June 2012, including vacating his home and relocating.  He was not aware that he received a discharge.  His unit never contacted him through any form of communication.  He lived in the same residence from August 2008 until July 2012, and his cellular phone number never changed for the last eight years.  He never received any correspondence, either via regular or certified mail.  He was never given the opportunity to defend himself as he believes he is entitled to.  Although he is guilty of not fulfilling his oath, his unit failed him.  He was a paramedic, but placed that career on hold, when he enlisted to defend his country.  As an older person, he had responsibilities and difficulties that overwhelmed him.  He went through some terribly dark personal times and not once did anyone from the chain of command reach out to him.  He believes the U.S. Army has a responsibility to its Soldiers that is equal to the responsibility the Soldiers do for the Army.  His request for an upgrade is for no other reason than to not have the black mark on his record for the rest of his life.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	5 March 2014
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	8 October 2012
	d.	Reason/Authority/SPD/RE Code:	AR 135-178
	e.	Unit of assignment:	411th Chemical Company (Heavy), Edison, NJ
	f.	Current Enlistment Date/Term:	28 April 2003, 8 years
	g.	Current Enlistment Service:	9 years, 5 months, 11 days
	h.	Total Service:	9 years, 5 months, 11 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	74D10, Chemical, Biological, Radiological, and 
			Nuclear Specialist
	m.	GT Score:	NIF
	n.	Education:	HS Graduate
	o.	Overseas Service:	NIF
	p.	Combat Service:	NIF
	q.	Decorations/Awards:	NIF
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:

The applicant enlisted in the U.S. Army Reserve on 28 April 2003, for a period of 8 years.  He was 33 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 74D10, Chemical, Biological, Radiological, and Nuclear Specialist.  His record documents no acts of valor or significant achievement.  He completed 9 years, 5 months, 11 days of reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 26 February 2011, the unit commander notified the applicant of initiation of separation action under the provisions of AR 135-178, by reason of unsatisfactory participation, for failing to attend the scheduled unit training assembly as required by AR 135-91, with an uncharacterized description of service.  He was advised of his rights via certified mail labeled as “7011 2970 0001 7893 5905” to his last known address.

2.  The applicant’s election of rights is not contained 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.  There is no record of the unit or the intermediate commanders’ subsequent recommendation to separate the applicant from the U.S. Army Reserve (USAR).  

3.  On 23 September 2012, the separation authority directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the grade of PVT/E-1.

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

5.  The applicant was separated on 8 October 2012, under Army Regulation 135-178, Chapter 13, with an under other than 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:

1.  Discharge Orders 12-276-00007, dated 2 October 2012.

2.  Two NCOERs are as follows:

	a.	Annual report (090503-100502), the rater assessed him as Marginal and the senior rater as 4/4.
	b.	Annual report (080503-090502), the rater assessed him as Fully Capable and the senior rater as 2/2.

3.  There are no counseling statements or UCMJ actions in the record.

4.  Certified mail receipts with return stamps of “Return to Sender,” “Attempted Not Known,” and “Unable to Forward.”

5.  Memorandum, dated 26 January 2012, subject: Letter of Instructions – Unexcused Absence, indicates the applicant being absent from the scheduled unit training assembly (UTA) for periods 21 and 22 January 2012.

6.  Memorandum, dated 26 February 2011, subject: Letter of Instructions – Unexcused Absence, indicates the applicant being absent from the scheduled unit training assembly (UTA) for periods 11 and 22 February 2012.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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.  



ANALYST’S 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, 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 primarily contends he was never informed about his imminent 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 contends he was not given the opportunity to defend himself; 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 contends that he was having family, emotional, employment, and financial issues that contributed to being ultimately discharged.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance.  

7.  The applicant contends the chain of command never reached out to him and no one attempted to contact him.  However, the evidence of record shows the command attempted to contact the applicant through certified mail.  The applicant failed to respond appropriately to these efforts.  Moreover, there is no evidence that shows the applicant made any attempt to contact his unit. 
8.  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.  

9.  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 June 2014      Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel/Representative:  None

Witnesses/Observers:  No

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Letter of petition for bankruptcy – 1 page
	b.  Letter of reference – 1 page
	c.  Employer bankruptcy document – 2 pages

2.  The applicant presented the additional contention:

	a.  Change the narrative reason for separation

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:  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)		AR20140004313

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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