IN THE CASE OF: Mr. BOARD DATE: 6 May 2015 CASE NUMBER: AR20140005557 ___________________________________________________________________________ Board Determination and Directed Action 1. 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. 2. The evidence indicates the applicant was entitled to have his command appoint a counsel to represent him in his absence at the Board of Inquiry under the provisions of AR 135-175, paragraph 1-16g. The record of the Board of Inquiry clearly states that he was not represented by a counsel. The applicant did not waive this right. Accordingly, the Board of Inquiry was improperly constituted and a fundamental right of the applicant to representation was violated and the processing of his separation was improper. 3. The Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable. 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 conditions to fully honorable, and to change the narrative reason for his discharge. 2. The applicant states, in pertinent part and in effect, his discharge and characterization of service are improper because he never received notification of the Board of Inquiry (BOI) that convened in April 2009, nor was he appointed a military counsel to represent him. As such, no evidence supporting his case was presented before the board. The board was improperly convened and he was subsequently denied his due process rights. The counsel on behalf of the applicant added that the discharge has the punitive consequence of precluding a person from future employment and veterans benefits and opportunities. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 24 March 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 28 September 2009 d. Reason/Authority/SPD/RE Code: AR 135-175 e. Unit of assignment: 174th JA DET, LSO HQ, Miami, FL f. Current Enlistment Date/Term: 19 February 1992, indefinite g. Current Enlistment Service: 16 years h. Total Service: 16 years i. Time Lost: NIF j. Previous Discharges: None k. Highest Grade Achieved: O-4 l. Military Occupational Specialty: 27A, Judge Advocate m. GT Score: NA n. Education: Masters in Laws (LLM) and Doctorate Degree o. Overseas Service: NIF p. Combat Service: None q. Decorations/Awards: ARCOM; AAM-2; ARCAM r. Administrative Separation Board: Yes, BOI s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant was appointed as a Reserve commissioned officer on 24 January 1992, for an indefinite period. He was 31 years old at the time of his appointment and had a doctorate degree. He was trained in and awarded military occupational specialty (MOS) 27A, Judge Advocate. His record documents no acts of valor or significant achievement. He completed 16 years of credible Reserve service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record shows that on 21 February 2009, the applicant was notified of an initiation of elimination proceedings under the provisions of Chapter 2, paragraph 2-12, AR 135-175, by reason of misconduct, moral or professional dereliction, specifically for testing positive for cocaine following a 25 January 2009 unit urinalysis. 2. The applicant was directed to show cause for retention in the Army after testing positive for cocaine. He was advised of his rights. He was further advised that he could submit a voluntary resignation in lieu of elimination or submit a rebuttal and request to have his case heard before a board of officers at a Board of Inquiry. The applicant was further informed that failure or refusal to accept or respond to his notification would not deter the board action proceedings in his absence. The applicant’s election of options responses were left blank/incomplete. A track and confirmation of the certified mail indicates an attempt was made to deliver the mail on 27 February 2009 and a notice was left, and that no further information was available for the delivery attempt. 3. On 22 March 2009, the applicant was notified via certified mail to appear before an administrative separation board for a show cause hearing and advised of his rights. 4. On 19 April 2009, the board convened and the applicant failed to appear with counsel before a Board of Inquiry (Show Cause Board). The Board found the applicant committed acts of personal misconduct and engaged in conduct unbecoming an officer. The Board recommended separation with an under other than honorable conditions discharge. 5. On 8 June 2009, the commanding general of the US Army Reserve Command, forwarded the BOI results to the commander of US Army Resource Command to separate the applicant with an under other than honorable conditions. 6. On 26 August 2009, the commander of the US Army Resources Command approved the findings and recommendation of the BOI and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 7. The record indicates that on 28 August 2009, Department of the Army, US Army Human Resource Command, St. Louis, MO, Orders D-08-917398, discharged the applicant from the United States Army Reserve, effective 28 September 2009, with an under other than honorable conditions discharge. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Memorandum, dated 20 May 2009, subject: Legal Review of Involuntary Separation – [the applicant], indicates there was no legal objection to approving the findings and recommendations of the duly constituted separation board. 2. There is a positive urinalysis report contained in the record: IU, Inspection Unit, 25 January 2009, cocaine. 3. Memoranda of Reprimand, dated 25 February and 17 March 2009, indicate the applicant was reprimanded for testing positive for cocaine during a unit urinalysis (090125), with certified mail which indicated the mail was refused on 27 February 2009, and an affidavit of service by mail indicates the MOR, dated 17 March 2009 was sent by certified mail. 4. Counseling statement, dated 22 March 2009, for being required to attend battle assemblies (BA) and other unit directed activities, and refusing to acknowledge phone or e-mail attempts since learning he test positive for illegal drug use. His request by fax on 20 March 2009, for excusal was denied for refusing to acknowledge any form of contact, including U.S. mail and was coded “U” for BA scheduled for 21 and 22 March 2009. 5. Counseling statement, dated 19 February 2009, with certified mail dated 26 February 2009, for testing positive for an illegal drug during a unit urinalysis (090125). The counseling farther stated the Soldier was called on his cell and work phones, as well as, e-mailed and ordered to appear for counseling (090119, 1800 hours). 6. Two memoranda, dated 16 December 2008 and 23 March 2009, subject: Letter of Instructions – Unexcused Absence (081213, 081214) with certified mail dated 28 December 2008, and (090321, 090322) with a certified mail. 7. Two letters rendered by the applicant’s employment law firm, dated 24 February 2009 and 3 March 2009, stated, in pertinent part and in effect, as follows: “We are demanding that you cease any attempted communication with him at his place of employment, insofar as the same is interfering with the business operations of these companies, to include this law firm of which I am the managing partner. The IT departments have already blocked any e-mail insofar as attempting to send anything official to a civilian employed is inappropriate under the circumstances.” 8. Five OERs rendered at the rank of MAJ/O-4 as follows: a. An “Annual” report covering the period of 30 November 2007 to 29 November 2008. The applicant was rated as “Satisfactory Performance, Promote” and received “Best Qualified” from the senior rater. b. An “Annual” report covering the period of 30 November 2006 to 29 November 2007. The applicant was rated as “Outstanding Performance, Must Promote” and received “Best Qualified” from the senior rater. c. An “Annual” report covering the period of 30 November 2005 to 29 November 2006. The applicant was rated as “Satisfactory Performance, Promote” and received “Best Qualified” from the senior rater. d. An “Annual” report covering the period of 30 November 2004 to 29 November 2005. The applicant was rated as “Outstanding Performance, Must Promote” and received “Best Qualified” from the senior rater. e. An “Annual” report covering the period of 30 November 2003 to 29 November 2004. The applicant was rated as “Outstanding Performance, Must Promote” and received “Best Qualified” from the senior rater. 9. Service School Academic Evaluation Report, dated 14 August 2007, indicates the applicant achieved the course standards of the USACGSOC. 10. Service School Academic Evaluation Report, dated 28 June 1996, indicates the applicant achieved the course standards of the JAOAC-Phase II Course. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a counsel-authored petition, dated 7 March 2014; a special power of attorney, dated 9 August 2012; administrative separation action notification, dated 21 February 2009 and election of options with certified mail document; law firm letter, dated 20 March 2009; request for change to regularly scheduled UTA, dated 20 March 2009 with Fax verification report; counseling statement, dated 22 March 2009; e-mail, dated 24 March 2009; letter of instructions memorandum, dated 23 March 2009; show cause hearing notification, dated 22 March 2009 with certified mail document; DA Form 1574 with summarized proceedings and board’s findings and recommendations; discharge orders; letter to applicant, dated 26 August 2009, notifying him of the approved board results; five memoranda acknowledging, transmitting, and providing legal reviews of the board’s results; and 11 OERs. POST-SERVICE ACTIVITY: The applicant provided none. REGULATORY AUTHORITY: 1. Army Regulation 135-175 sets forth the basic authority for the separation of officers from the U.S. Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days. Chapters 2 and 3 provide the basis for involuntary separation of USAR officers. Specific categories include substandard performance of duty, moral or professional dereliction, in the interest of national security, as a result of trial by court martial, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without proper authority from unit training. 2. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general under honorable conditions or an honorable discharge may be granted. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request to upgrade the characterization of his service and to change the narrative reason for his discharge was carefully considered. 2. After a careful review of the entire applicant’s military records, and the issues and documents submitted with the application, the discharge appears to be improper. 3. The evidence of record confirms the Board of Inquiry held to decide on the applicant’s separation proceedings was improperly constituted and a fundamental right of the applicant to representation was violated. Under the provisions of Army Regulation 135-175, paragraph 2-16g, the applicant’s command is required to appoint a counsel to represent him in his absence, even if he refused delivery of notification of a board, the command is required to appoint a counsel to represent him in his absence. The record of the Board of Inquiry clearly states that the applicant was not represented by counsel and he did not waive this right by his failure to accept service. 4. The records show the proper discharge and separation procedures were not followed in this case. 5. Therefore, the discharge being improper, recommend the Board grant full relief in the form of an upgrade of a change to the characterization of service to Honorable. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 6 May 2015 Location: Washington, DC Did the Applicant Testify? No Counsel/Representative: Mr. Patrick J. McLain, 3131 McKinney Avenue, Suite 825, Dallas, Texas 75204-7426 Board Vote: Character Change: 5 No Change: 0 Reason Change: NA No Change: NA (Board member names available upon request) Board Action Directed: Issue a new Discharge Order: Yes Change Characterization to: Honorable Change Reason to: NA Change Authority for Separation: NA Change RE Code to: NA Grade Restoration to: NA Other: TO: ARBA Promulgation Team. Arlington, VA Date: 6 May 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: ( X ) Change characterization of discharge to Honorable. 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) AR20140005557 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1