IN THE CASE OF: Mr. BOARD DATE: 28 January 2015 CASE NUMBER: AR20140003270 ___________________________________________________________________________ Board Determination and Directed Action 1. After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation which follows, the Board determined the discharge is inequitable. The Board found the circumstances surrounding his discharge (i.e., the command did not properly comply with change 4, AR 135-91, paragraphs 4-19 and 4-20), mitigated the discrediting entries in his service record. 2. Accordingly, the Board voted to grant full 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 a change to the reentry eligibility (RE) code to 1. This action further entails restoration of grade/rank to E-3/PFC. 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 discharge from under other than honorable conditions to honorable. 2. The applicant states, in effect, he feels the new Human Resource (HR) sergeant in charge did not try hard enough to help him out. He tried calling the new HR person; she hardly answered the phone; and then he received a call he was being discharged. He would like to reenlist in the active Army which would change his life; he is older and wiser now. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 18 February 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 14 April 2012 d. Reason/Authority/SPD/RE Code: Unsatisfactory Participation/AR-135-178, Chapter 13 e. Unit of assignment: HQS, 678th AG Company (HR), Nashville, TN f. Current Enlistment Date/Term: 5 March 2008/US Army Reserve, 8 years g. Current Enlistment Service: 4 years, 1 month, 10 days h. Total Service: 4 years, 1 month, 10 days i. Time Lost: None j. Previous Discharges: IADT (091006-091211)/HD (Concurrent Service) k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 92G10, Food Service Operations m. GT Score: NIF n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM, GWOTSM, ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: No u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the US Army Reserve on 5 March 2008, for a period of 8 years. He was 17 years old at the time of entry and a high school graduate. He was ordered to initial active duty training on 6 October 2009, and awarded military occupational specialty (MOS) 92G10, Food Service Operations. He received an honorable discharge upon completion of his required active service. His record does not contain any evidence of acts of valor or meritorious achievements; he achieved the rank of PFC/E-3. He was serving in Nashville, TN, when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows on 17 January 2012, the unit commander (LTC, LG, Commanding) notified the applicant of initiation of separation action under the provisions of Chapter 13, AR 135-178, by reason of unsatisfactory participation in the Army Reserve, for failing to satisfactorily attend scheduled training dates. 2. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. The commander also indicated he was suspending action on this matter for 30 days to give the applicant the opportunity to exercise his rights. 3. The applicant’s unexecuted election of rights is contained in the available record. The above referenced notification of separation was also sent to the applicant’s last known address via certified mail, returned receipt requested, however the letter was returned unclaimed with no forwarding address. The applicant failed to respond within thirty days to the notification of separation and accordingly, waived all rights afforded under provisions of AR 135-178. On 17 February 2012, the unit commander recommended separation from the US Army Reserve (USAR). 4. On 30 March 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. The applicant was reduced to the lowest enlisted rank. 5. The applicant was separated on 4 April 2012, under the provisions of Army Regulation 135-178, Chapter 13, with an under other than honorable conditions discharge. 6. The applicant’s service record does not contain any evidence of unauthorized absences, time lost, negative counseling statements or any actions the Uniform Code of Military Justice (UCMJ). EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Reduction/Discharge Orders 12-100-00037, dated 9 April 2012. 2. Five memoranda, letter of instructions for unexcused absences, dated 22 March 2011, 17 October 2011, 12 December 2011, 23 January 2012 and 6 February 2012, indicating unexcused absences from drills. 3. A DD Form 214, dated 11 December 2009, indicating the applicant completed his required active service. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application (six pages). POST-SERVICE ACTIVITY: The applicant did not provide any information with his application. 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 accrue 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. 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 contends the new HR sergeant in charge did not try hard enough to help him out. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and 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. 5. The applicant further contends he tried calling the new HR person; she hardly answered the phone; and then he received a call he was being discharged. The applicant bears the burden of presenting substantial and credible evidence to support his contention that he tried calling the HR person to no avail. There is no evidence in the record, nor has the applicant provided any evidence, to support his contention. 6. The applicant also contends he would like to reenlist in the active Army which would change his life; he is older and wiser now. 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 non-waivable disqualification, thus the applicant is no longer eligible for reenlistment. 7. Further, the record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 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, the analyst recommends the Board deny relief. BOARD DETERMINATION AND DIRECTED ACTION: 1. After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation which follows, the Board determined the discharge is inequitable. The Board found the circumstances surrounding his discharge (i.e., the command did not properly comply with change 4, AR 135-91, paragraphs 4-19 and 20), mitigated the discrediting entries in his service record. 2. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change of the narrative reason for separation to Secretarial Authority. This action entails a change to the reentry eligibility (RE) code to 1. This action further entails restoration of grade/rank to E-3/PFC. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 28 January 2015 Location: Washington, DC Did the Applicant Testify: NA Counsel: No Witnesses/Observers: NA Board Vote: Character Change: 5 No Change: 0 Reason Change: 5 No Change: 0 (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: 1 Grade Restoration to: E-3/PFC Other: TO: ARBA Promulgation Team. Arlington, VA Date: 28 January 2015 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 fully Honorable. ( X ) Change narrative reason for separation to Secretarial Authority under provisions of AR 135-178, Chapter 14. ( X ) Change the RE code to 1. ( X ) Restoration of grade to PFC/E-3 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) AR20140003270 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1