Applicant Name: ????? Application Receipt Date: 2010/05/12 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he requests an upgrade of his discharge to general, under honorable conditions. He contends that the commander counseled him regarding the situation and actions that led to his discharge and recommended a general, under honorable conditions discharge in light of his personal circumstances. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 081205 Discharge Received: Date: 090215 Chapter: 13 AR: 135-178 Reason: Unsatisfactory Participation RE: SPD: NA Unit/Location: 990th EN Co, Fort Dix, NJ Time Lost: NIF Article 15s (Charges/Dates/Punishment): NIF Courts-Martial (Charges/Dates/Punishment): NIF Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 39 Current ENL Date: 000809 Current ENL Term: 06 Years based on the available record it appears that the applicant reenlisted or extended as of his discharge date (090215). However, the document is not part of the available record. Current ENL Service: 08 Yrs, 06 Mos, 07 Days ????? Total Service: 30 Yrs, 03 Mos, 02Days ????? Previous Discharges: USAR-790517-790626/NA ADT-790627-800311/HD USARCG-800312-850319/NA ARNG-850320-910725/HD USAR-910726-951004/HD USAR-951005-980629/NA USARCG-980630-000808/HD AD-030218-040415/HD (Concurrent Service) Highest Grade: E-5 Performance Ratings Available: Yes No MOS: 21W20 Carpentry & Masonry Spec GT: NIF EDU: HS Grad Overseas: Southwest Asia Combat: Kuwait/Iraq (030418-040228) Decorations/Awards: ARCOM, ARCAM-3, NDSM-2, AFRM-W/"M" DEV, NCOPDR, ASR, OSB, V. Post-Discharge Activity City, State: Bridgeport, CT Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 5 December 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 13, AR 135-138, by reason of unsatisfactory participation, with a general, under honorable conditions discharge. He was advised of his rights. On 5 December 2008, the applicant waived legal counsel and did not indicate if a statement was submittted in his own behalf. Also, in his election of rights it appears that the applicant inadvertantly checked box 4-2 instead of box 4-4-2b, which indicates that he waived consideration of his case by an administrative separation board. The applicant The unit commander's and the separation authority's memoranda are not contained in the available record and the analyst presumed government regularity in the discharge process. On 16 January 2009, DA, HQS, 412th Engineer Command, Vicksburg, MS, Orders 09-016-00055, discharged the applicant from the United States Army Reserve, effective date: 15 February 2009, with an under other than honorable conditions discharge. The applicant was to be reduced to the lowest enlisted rank. b. Legal Basis for Separation: Army Regulation 135-78 govern procedures covering enlisted personnel management of the Army Reserve. Paragraph 13-1 of that regulation 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 occur during a 1 year period. Army policy states that an under other than honorable conditions discharge is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s available military records during the period of enlistment under review , the issues and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. All the facts and circumstances pertaining to the applicant’s discharge from the United States Army Reserve are not contained in the available records. On 16 January 2009, DA, HQS, 412th Engineer Command, Vicksburg, MS, Orders 09-016-00055, discharged the applicant from the United States Army Reserve, effective date: 15 February 2009, with an under other than honorable conditions discharge. This document identifies the characterization of the discharge and the analyst presumed government regularity in the discharge process. Barring evidence to the contrary, the analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant contends that the commander counseled him regarding the situation and actions that led to his discharge and recommended a general, under honorable conditions discharge in light of his personal circumstances. The intermediate commanders and the separation authority are not bound by the unit commander's recommendation as to characterrization of service. Further, the analyst found no evidence of arbitrary or capricious actions by the command. The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The analyst determined that the applicant’s Official Military Personnel File (OMPF) does not contain all the specific documents that would indicate the reason for the separation action from the United States Army. If the applicant desires to appear before a personal appearance Board, the burden of proof remains with the former Soldier to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration. Therefore, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 23 February 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: DD Form 149, dated (100420); AR 135-178, Discharge Packet consisting of sixteen (16) pages. VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the characterization of service is too harsh, and as a result it is inequitable. The Board determined that the overall length and quality of the applicant’s service, to include his combat service, mitigated the discrediting entries in his service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. However, the Board determined that the reason for discharge was proper and equitable and voted not to change it. This action entails restoration of grade to SGT/E-5. IX. Board Decision XI. Certification Signature Board Vote: Approval Authority: Character - Change 5 No change 0 Reason - Change 0 No change 5 (Board member names available upon request) EDGAR J. YANGER Colonel, U.S. Army X. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: NA RE Code: Grade Restoration: No Yes Grade: SGT/E-5 Legend: AWOL Absent Without Leave GCM General Court Martial NA Not applicable SCM Summary Court Martial BCD Bad Conduct Discharge GD General Discharge NIF Not in the file SPCM Special Court Martial CG Company Grade Article 15 HD Honorable Discharge OAD Ordered to Active Duty UNC Uncharacterized Discharge DD Dishonorable Discharge HS High School Graduate OMPF Official Military Personnel File UOTH Under Other Than Honorable FG Field Grade Article 15 IADT Initial Active Duty Training RE Reentry Code Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20100015054 ______________________________________________________________________________ Page 3 of 3 pages