IN THE CASE OF: Mr. BOARD DATE: 23 July 2014 CASE NUMBER: AR20140004804 ___________________________________________________________________________ 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 improper. The evidence indicates the applicant requested an administrative separation board and was entitled to one because he was recommended for separation with a characterization of service of under other than honorable conditions. The Board noted that an administrative separation board is a right and required under the provisions of Army Regulation 135-178, and the record reflects the applicant did not receive an administrative separation board and did not waive it. Denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority. This action entails restoration of grade to E-4. 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 his reentry (RE) code to RE-1, reinstatement into the Army Individual Ready Reserve (IRR), full back pay from his date of discharge of 4 October 2012 to present, removal of any derogatory marks, comments, evaluation, and other such records of administrative actions as a result of his initial discharge, and reinstatement to the grade of E-4. 2. The applicant states, in effect, he was in constant contact with his chain of command and was never notified of the intent to separate him from military service. He contends when he was notified by another member of his unit, he requested to have his case heard by an administrative separation board but his request was denied and he was separated with an under other than honorable conditions discharge. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 10 March 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 4 October 2012 d. Reason/Authority/SPD/RE Code: Unsatisfactory Participation, AR 135-178, NIF, NIF e. Unit of assignment: 380 Quartermaster Company, Evansville, IN f. Current Enlistment Date/Term: 7 April 2011/8 years g. Current Enlistment Service: 1 year, 5 months, 28 days h. Total Service: 1 year, 6 months, 28 days i. Time Lost: None j. Previous Discharges: USAR, (110407-110508), NA ADT, (110509-111006), HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92F1O, Petroleum Supply Specialist m. GT Score: NIF n. Education: College Degree o. Overseas Service: No p. Combat Service: No q. Decorations/Awards: NDSM, ASR r. Administrative Separation Board: No s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the United States Army Reserve (USAR) on 7 April 2011, for a period of 8 years. He was 26 years old at the time of entry and a college graduate. His record is void of any significant acts of valor and achievement. He completed 1 year, 6 months, and 28 days of creditable military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record shows that on 23 July 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 failing to report for official annual training orders, with an under other than honorable conditions discharge. He was advised of his rights via certified mail to his last known address (120723). 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 45 days, to allow the applicant with the opportunity to exercise his right to consult with legal counsel. The unit commander recommended separation from the US Army Reserve (USAR). 3. On 5 September 2012, the applicant notified 1SG I of his desire to have his case heard before an administrative separation board. There is no evidence the applicant appeared before an administrative separation board. 4. On 26 September 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. He was reduced to the lowest enlisted grade of E-1. 5. The applicant was separated on 4 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. A DD Form 214, reflects the applicant was honorably discharged after completing active duty for training covering the period 110509-111006. 2. Orders Number 12-270-00018, dated 26 September 2012, DA Headquarters, 88th Regional Support Command, Fort McCoy, Wisconsin, reduced the applicant to the lowest enlisted grade, effective 26 September 2012, and discharged him from the USAR, effective 4 October 2012. EVIDENCE SUBMITTED BY THE APPLICANT: 1. Counsel provided in support of the applicant’s petition a DD Form 149, dated 19 February 2014; a self-authored statement, dated 6 March 2014, addressing the applicant’s contention; a copy of the applicant’s discharge packet, dated 23 July 2012. As a note, the discharge packet is signed by 1SG I, and not the unit commander. Email messages, dated between 2 May 2012, and 22 November 2013; Annual Training Orders Number 050061, dated 14 May 2012, DA, 81st Regional Support Command, Fort Jackson, SC, ordered the applicant to annual training, from 7 July 2012 to 20 July 2012; two memorandums for record, dated 13 June 2012, reflects the applicant was notified of orders for annual training by 1SG I; and, an affidavit of service by mail signed by Ms. N, indicating she mailed the annual training orders to the applicant’s last known address; a letter of acceptance to North Georgia College and State University, dated 11 April 2011; an affidavit, dated 22 November 2013, reflects the applicant resided in Dahlonega, Georgia, from 26 December 2011 until 10 July 2012; three DA Forms 1380 (Record of Individual Performance of Reserve Duty Training), dated between 22 January 2012 and 5 February 2012, a Certificate of Completion for the Accident Avoidance Course, dated 24 January 2012; a change of address form, reflects the applicant officially submitted a change of address form, with an effective date of 4 July 2012; an undated DA Form 4824 (Addendum to Certificate and Acknowledgement of Service Requirements for all Personnel applying for Participation in the ROTC Simultaneous Membership Program), reflects the applicant applied for membership in the ROTC SMP. As a note it reflects the signature of the applicant’s commander; and a Department of the Army Reserve Health Readiness Program Form, dated 20 January 2012. POST-SERVICE ACTIVITY: Counsel states the applicant has met with resounding success in civilian life. He has been promoted to Sales Assistant Store Manager, completed a management trainee program, he is actively involved in Toastmasters International and serves as Vice President of Membership, he is a member of the local Chamber of Commerce Young Professionals, and volunteers with Habitat for Humanity and the United Way organizations. 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 one 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. 4. AR 135-178, paragraph 3-5a, stipulates when the notification procedure is required under a reason for separation cited in this regulation, the commander will notify the Soldier, in writing, of the matter set forth in this section. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge, a change to the narrative reason and RE code was carefully considered. 2. After examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to honorable for the following reasons: a. The evidence of record confirms that the applicant requested consideration of his case by an administrative separation board. An administrative separation board is a right and required under the provisions of Army Regulation 135-178. The record reflects that on 5 September 2012, the applicant requested via email to have his case heard by an administrative separation board within the 45 days given on the notification letter, however, the applicant did not receive an administrative separation board and denial of such a board constituted a prejudicial error to the rights of the applicant and as a result the discharge is improper. b. The governing regulation requires the immediate commander to initiate notification to a Soldier regarding the command’s intent to separate him from military service. The discharge packet provided as evidence, reflects the unit 1SG initiated and notified the applicant of the intent to discharge him from the USAR. There is no available evidence to support that 1SG I was acting on the behalf of the unit commander. c. Further, the applicant provided clear and convincing evidence that he was in constant contact with the chain of command during his absence from the unit. 3. This recommendation is made after full consideration of all of the applicant’s faithful and honorable service. The evidence in this case supports a conclusion that the applicant’s discharge is improper. 4. The applicant requests reinstatement into the Army Individual Ready Reserve (IRR), full back pay from his date of discharge of 4 October 2012 to present, removal of any derogatory marks, comments, evaluation, and other such records of administrative actions as a result of his initial discharge. However, the applicant’s request 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. 5. The record shows the proper discharge and separation authority procedures were not followed in this case. 6. Therefore, the discharge being improper, recommend the Board grant partial relief in the form of an upgrade of a change to the characterization of service to “Honorable,” and a change to the narrative reason for separation to “Secretarial Authority,” under the provisions of Chapter 14, AR 135-178. This action entails restoration of grade to E-4. In addition, the Board may consider a change to the RE code. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Record Review Date: 23 July 2014 Location: Washington, DC Did the Applicant Testify? No Counsel: Yes [redacted] Witnesses/Observers: NA Board Vote: Character Change: 4 No Change: 1 Reason Change: 4 No Change: 1 (Board member names available upon request) Board Action Directed: Issue a new Discharge Order: Yes Change Characterization to: Honorable Change Reason to: Secretarial Authority Change Authority for Separation: AR 135-178, Chapter 14 Change RE Code to: No Change Grade Restoration to: SPC/E-4 Other: TO: ARBA Promulgation Team. Arlington, VA Date: 23 July 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 Honorable Conditions, ( X ) Change narrative reason to Secretarial Authority ( X ) Change authority to AR 135-178, Chapter 14 ( X ) Restoration of grade to E-4/SPC 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) AR20140004804 Page 6 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1