IN THE CASE OF: BOARD DATE: 10 June 2014 CASE NUMBER: AR20140003893 ___________________________________________________________________________ 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 both 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 that his under other than honorable conditions discharge be upgraded to honorable. 2. The applicant states, in effect, his company mobilized and he was at school and had to be sent to the rear attachment over fifty miles from his house. He decided to move out of NY and requested to be back in the IRR. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 27 February 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 24 July 2012 d. Reason/Authority/SPD/RE Code: Unsatisfactory Participation, AR 135-178 Chapter 13 e. Unit of assignment: Bravo Company, 325th Military Intelligence Battalion, Ernie Pyle Reserve Center, Fort Totten, NY f. Current Enlistment Date/Term: USAR/5 April 2005, 8 years g. Current Enlistment Service: 7 years, 3 months, 19 days h. Total Service: 7 years, 3 months, 19 days i. Time Lost: None j. Previous Discharges: ADT 051118-071117/HD (Concurrent Service) k. Highest Grade Achieved: SGT/E-5 l. Military Occupational Specialty: 09L20, Translator m. GT Score: 104 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (051131-061207) q. Decorations/Awards: ARCOM, AAM, NDSM, GWOTS, ICM, ASR OSR, AFRM-w/M Device, CAB r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Army Reserve on 5 April 2005, for a period of 8 years. He was 24 years old at the time of entry and a high school graduate. He served a combat tour in Iraq. He earned an ARCOM, AAM, and the CAB. He completed 5 years, 3 months, and 19 days of reserve service and completed 2 years of active duty service for a total of 7 years, 3 months, and 19 days. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record shows that on 13 February, 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 missing at least 9 or more training assemblies within a one year period, failing to attend or complete annual training and failing to obtain a unit of assignment during a leave of absence granted IAW AR 135-91, Chapter 4, Section IV. The unit commander recommended separation with a general, under honorable conditions discharge. He was advised of his rights via certified mail to his last known address (120215). 2. On 12 March 2012, the unit commander again notified the applicant of initiation of separation action under the provisions of Chapter 13, AR 135-178, by reason of unsatisfactory participation, for missing at least 9 or more training assemblies within a one year period, failing to attend or complete annual training and failing to obtain a unit of assignment during a leave of absence granted IAW AR 135-91, Chapter 4, Section IV. The unit commander recommended separation with an under other than honorable conditions discharge. He was advised of his rights via certified mail to his last known address (120215). 3. 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 30 days, to allow the applicant with the opportunity to exercise his right to consult with legal counsel. He further advised the applicant that failure to respond within 30 calendar days of receipt of this notification memorandum constituted a waiver of his rights described in paragraph 5a, 5b, 5d, and 5e. 4. On 13 April 2012, the unit commander recommended separation from the US Army Reserve (USAR) and indicated in his memorandum that the applicant failed or refused to respond within the 30 calendar days he was given. The intermediate commander reviewed the proposed action and recommended an under other than honorable conditions discharge. 5. On 10 July 2012, the separation authority directed the applicant’s discharge with a characterization of service of under other than honorable conditions. The applicant was reduced in grade of rank to PV1. 6. The record contains documentation that shows the unit notified the applicant on several occasions and he refused to respond within the 30 calendar days, as instructed. 7. The applicant was separated on 24 July 2012, under Army Regulation 135-178, Chapter 13, with an under other than honorable conditions discharge,. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. One negative counseling statement dated 4 November 2011, for accumulating 44 unexcused absences within a continuous 12 month period. 2. Notification of dismissal from the Human Intelligence Collector Phase II Class dated 23 February 2010, for failing to meet academic standards as stated in the Course Managers Guide. 3. An NCOER covering the period of 4 June 2008 to 3 June 2009. The applicant was rated as marginal and received fair from the senior rater. 4. An NCOER covering the period of 4 June 2009 to 3 June 2010. The applicant was rated as marginal and received fair from the senior rater. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application dated 18 February 2014. POST-SERVICE ACTIVITY: The applicant did not provide any with the 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 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. 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 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 that 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 the acts of misconduct (i.e., missing at least 9 or more training assemblies within a one year period, failing to attend or complete annual training and failing to obtain a unit of assignment during a leave of absence granted IAW AR 135-91, Chapter 4, Section IV), the applicant diminished the quality his service below that meriting a general or a fully honorable discharge. Further, the applicant was dismissed from the Human Intelligence Collector Phase II Class, for failing to meet academic standards as stated in the Course Managers Guide. 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 his company mobilized and he was at school and had to be sent to the rear attachment over fifty miles from his house. He decided to move out of NY and requested to be back in the IRR. 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. 5. The applicant’s statement alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 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. 6. The records show the proper discharge and separation authority procedures were followed in this case. 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: Record Review Date: 10 June 2014 Location: Washington, DC Did the Applicant Testify? No Counsel: None Board Vote: Character Change: 2 No Change: 3 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: 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) AR20140003893 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1