IN THE CASE OF: Mr. BOARD DATE: 9 December 2013 CASE NUMBER: AR20130008792 ___________________________________________________________________________ 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 service (i.e., ARCOM, JSAM, two AAMs, three AGCMs) to include his combat service. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable conditions. The Board further determined the reason for discharge was both proper and equitable and voted not to change it. 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. 2. The applicant states, in effect, that he did not receive due process. The board failed to rectify his concerns and his commander requested an honorable discharge. First, he would like to note that his command failed to provide him adequate notice of the action. He has attached a letter from Major (MAJ) S from JAG explaining his reaction once notified. Therefore, he was precluded from receiving timely advice and his due process rights were violated. He was informed that the command attempted to notify him via certified mail. He was a drilling reservist with the same command at the time and was present at every drill. The first notification memorandum was sent via certified mail in March 2005. It was returned unclaimed. The second was sent in August 2005 and supposedly his wife signed for it. He never saw the documents. His command stated that since they never received a response from him, he waived all rights to counsel and to a board proceeding, etc. Again he attended every drill as the first sergeant, so he was available to the command for drill, AT and or ADT. He has 31 years of service with 28 of those years being good years for retirement purposes. He received his 20 year letter many years ago, but decided to stay. His company and battalion commander were left out of the entire process. His commander recommended an honorable discharge, but his recommendation was not considered. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 6 May 2013 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 15 December 2006 d. Reason/Authority/SPD/RE Code: NIF e. Unit of Assignment: 81st RRC, Birmingham, AL f. Current Enlistment Date/Term: 1 November 2003, Indefinite g. Current Enlistment Service: 3 years, 1 month, 15 days h. Total Service: 32 years, 1 month, 13 days i. Time Lost: None j. Previous Discharges: RA (740625-760624), HD USARCG (760625-800624), NA (Break-in-Service) RA (801103-841102), HD USAR (841103-031031), NA (Concurrent Service) k. Highest Grade Achieved: E-7 l. Military Occupational Specialty: 96D40, Imagery Analyst m. GT Score: NIF n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq/Kuwait (021106-030521) q. Decorations/Awards: ARCOM, JSAM, AAM-2, AGCM-3, ARCAM-4, NDSM- 2, AFRM-w/M Device, NPDR, ASR, OSR r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: Yes, 13 February 2013, Deny SUMMARY OF SERVICE: The applicant reenlisted in the US Army Reserve on 1 November 2003, for an indefinite period. He was 41 years old at the time. His record shows he was awarded an ARCOM, JSAM, two AAMs, three AGCMs, and four ARCAMs. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s service record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army Reserve. 2. The evidence shows the applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the United States Army Reserve. However, the record indicates that on 15 November 2006, DA HQS, 81st Regional Support Command, Birmingham, AL, Orders 06-319-00080, discharged the applicant from the United States Army Reserve, effective 15 December 2006, with an under other than honorable conditions discharge, under the provisions of AR 135-178. The reason for the applicant’s discharge is not contained in the available record. 3. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Two successful NCOERs covering the period August 2003 through May 2005. 2. The record does not contain any negative counseling’s or actions under the Uniform Code of Military Justice. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, a self-authored statement, a Checklist for reassignment, chronologic statement for retirement points, contact information, two DD Forms 214, three front pages of NCOERs, a reinstatement request, DA Form 638 for a JSAM, an Enlisted Record Brief, Personnel Qualification Record, memorandum from JAG for immediate actions, DA Form 638 for an AAM, and deployment orders, dated 3 November 2002. POST-SERVICE ACTIVITY: None provided with the application. REGULATORY AUTHORITY: Army Regulation 135-178 sets forth the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. The characterization is based upon the quality of the Soldier’s service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army Regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization. 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 issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The applicant’s record is void of the specific facts and circumstances concerning the events which led to the applicant's discharge from the United States Army Reserve. However, the record shows that on 15 November 2006, DA HQS, 81st Regional Support Command, Birmingham, AL, Orders 06-319-00080, discharged the applicant from the United States Army Reserve, effective 15 December 2006, with an under other than honorable conditions discharge. All the facts and circumstances pertaining to the applicant’s discharge are not contained in the available records and the analyst presumed government regularity in the discharge process. 3. Barring evidence to the contrary, the presumption of government regularity shall prevail, as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 4. The applicant's contentions about not receiving adequate notification of the action, which precluded him from receiving timely advice and his due process was violated was carefully considered; however, 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 his due process was violated. 5. The applicant contends he was informed that the command attempted to notify him via certified mail. He was a drilling reservist with the same command at the time and was present at every drill. The first notification memorandum was sent via certified mail in March 2005. It was returned unclaimed. The second was sent in August 2005 and supposedly his wife signed for it. However, the applicant did confirm that it was several attempts made by the unit to contact him via mail. It is unknown why the unit chose to attempt to notify the applicant via certified mail versus informing him at the monthly drills. The actions taken by the unit were considered to be a valid means of notification. 6. The applicant contends his commander recommended an honorable discharge, but his recommendation was not considered. The applicant’s contentions were noted; however, the separation authority is not bound by the commander’s or the chain of command’s recommendation. 7. Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 9 December 2013 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None Witnesses/Observers: None DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted no additional documents or additional contentions. 2. In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing. Board Vote: Character Change: 3 No Change: 2 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: Honorable 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) AR20130008792 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1