IN THE CASE OF: BOARD DATE: 8 June 2015 CASE NUMBER: AR20150003025 ___________________________________________________________________________ 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 to be 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 honorable. 2. The applicant states, in effect, he is trying to reenlist on active duty. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 23 February 2015 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: CO A, 533rd Bde Spt Bn (ME), Jersey City, NJ f. Current Enlistment Date/Term: 1 October 2007, TPU Status until 21 May 2014 (ETS) g. Current Enlistment Service: 5 years, 1 day h. Total Service: 9 years, 1 month, 16 days i. Time Lost: NIF j. Previous Discharges: RA      (030822-070821) / HD USAR (070822-070930) / NA (Control Group) k. Highest Grade Achieved: E-6 l. Military Occupational Specialty: 88M10, Motor Transport Operator m. GT Score: 113 n. Education: HS Graduate o. Overseas Service: Germany, SWA p. Combat Service: Iraq (050822-060808) q. Decorations/Awards: ARCOM r. Administrative Separation Board: NIF s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant was transferred to the US Army Reserve Control Group (REINF) on 21 August 2007, upon his ETS from active duty to complete the remainder of his 8-year military service obligation (MSO) from 22 May 2003 to 21 May 2011. On 1 October 2007, he was transferred to a TPU status until 21 May 2014, at his ETS from the Ready Reserve obligation and TPU service. He was 27 years old at the time of his transfer to USAR and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 88M10, Motor Transport Operator. His record shows he served in Germany and Iraq during his prior service, and was awarded an ARCOM. He completed 9 years, 1 month, and 16 days of reserve and active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record shows that on 14 July 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 13, AR 135-178, by reason of being AWOL for Annual Training and for non-participation in unit Battle Assemblies, and failing to provide a valid excuse for his lack of attendance at weekend training events, with an under other than honorable conditions discharge. He was advised of his rights via certified mail to his last known address (110717). 2. The applicant’s completed 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 at least 30 days (according to the suspense date of 15 August 2011), to allow the applicant with the opportunity to exercise his right to consult with legal counsel. On 12 March 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 23 May 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. 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, with an under other than honorable conditions discharge, and was reduced to the lowest enlisted grade. 6. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Orders, dated 17 October 2007, indicate the applicant was reassigned from the USAR Control Group (REINF) to 533 CS Bn Co A, Jersey City, NJ, effective 1 October 2007, with an expiration term of service of his eight-year statutory obligation on 21 May 2011. 2. Affidavit of Service by Mail, dated 31 August 2011, indicates the notification of separation, dated 14 July 2011, was certified mail on 17 July 2011. 3. A return receipt of the aforementioned notification shows the applicant’s signature of having received it on 3 August 2011. 4. Two counseling statements, dated 31 August 2011, for being mailed his notification of separation; several attempts being made to contact him with no success; that he may be discharged for being unqualified for further military service by reason of unsatisfactory performance; and his decision to separate from TPU with a contractual obligation that ends 21 May 2011, and statutory obligation that ends on 21 May 2014. 5. Four Letters of Instruction – Unexcused Absence, dated 2 May 2011, 13 June 2011, 12 July 2011, and 18 August 2011. 6. Four NCOERs rendered during current service under review, as follows: a. An “Annual” report covering the period of 1 October 2010 to 30 September 2011, which indicates the applicant was rated as “Marginal” and received 5/5 from the senior rater. The report was not authenticated by the applicant. b. An “Annual” report covering the period of 1 October 2009 to 30 September 2010, which indicates the applicant was rated as “Fully Capable” and received 2/2 from the senior rater. The report was authenticated by the applicant. c. An “Annual” report covering the period of 1 October 2008 to 30 September 2009, which indicates the applicant was rated as “Fully Capable” and received 2/2 from the senior rater. The report was authenticated by the applicant. d. An “Annual” report covering the period of 1 October 2007 to 30 September 2008, which indicates the applicant was rated as “Fully Capable” and received 2/2 from the senior rater. The report was authenticated by the applicant. 7. Two DA Form 1059, Service School Academic Evaluation Reports, as follows: a. A report, dated 19 August 2010, indicates the applicant achieved the course standards of the BNCOC course. b. A report, dated 26 July 2008, indicates the applicant achieved the course standards of the Warrior Leader Course. 8. Personnel Qualification Record, dated 31 August 2011, in pertinent part, reflects the applicant’s expiration of statutory obligation on 21 May 2011, and expiration of his TPU service on 21 May 2014. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided discharge orders that are under current review. 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. 4. Paragraphs 2–15a and b, stipulates that a Soldier is entitled to be discharged on the expiration of his or her service obligation, and normally will be discharged unless action is taken to retain the Soldier beyond such expiration date, and that retention beyond the expiration date of a service obligation may be either voluntary or involuntary. 5. Paragraph 4–1, stipulates that a Soldier will be discharged from the Army upon expiration of the later of the term of contractual service or the statutory MSO. 6. Paragraph 4-2a stipulates that a person whose initial entry into military service was on or after 1 June 1984, incurred an obligation under 10 USC 651(a) to serve a period of 8 years in the military service from the date of entry unless sooner discharged for personal hardship. Unless reenlisted or extended for a term of service that exceeds the expiration date of the statutory MSO, or retained as prescribed in paragraph 2–15 of this regulation, the Soldier will be discharged on the expiration of the statutory MSO by the separation authority (paragraph 1–10, of AR 135-178). Paragraph 4-2b, stipulates that on enlistment and reenlistment, a Soldier enters into an agreement to serve in a regular or reserve component of the armed forces for a specified term of service. The contracted term of service may expire during, run concurrent with, or exceed the term of an incurred statutory MSO. Unless reenlisted or extended, a Soldier will be discharged from military service on expiration of a contractual MSO, or a statutory MSO, whichever is the later, by the separation authority (paragraph 1–10, of AR 135-178). 7. Paragraph 4–3 stipulates that a Soldier may not be held in the Army beyond the normal expiration of service obligation unless the service obligation is extended by law or the provisions of paragraph 2–15 of this regulation, apply. When through administrative error a Soldier is not discharged on the actual date of completion of term of Soldier enlistment, reenlistment, or date of completion of statutorily obligated service, or as provided in paragraph 2–15 of this regulation, a remark will be included in the “Remarks” section of the Soldier’s DA Form 2–1 as follows: “Retained beyond normal discharge date for the convenience of the Government.” 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 issue 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 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 is trying to reenlist on active duty. 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 nonwaivable disqualification, thus the applicant is no longer eligible for reenlistment. 6. 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. 7. 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: 8 June 2015 Location: Washington, DC Did the Applicant Testify? No Counsel: None 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 DD Form 214: No Change Characterization to: No Change Change Reason to: No Change Change Authority for Separation: No Change Change RE Code to: No Change Grade Restoration to: NA Other: NA Legend: 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 IADT – Initial Active Duty Training OMPF - Official Military Personnel File UOTHC - Under Other Than FG - Field Grade MP – Military Police RE - Reentry Honorable Conditions ADRB Case Report and Directive (cont) AR20150003025 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1