IN THE CASE OF: Mr. BOARD DATE: 14 January 2015 CASE NUMBER: AR20140016248 ___________________________________________________________________________ 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 characterization of service was too harsh based on the overall length and quality of the applicant's service, to include his combat service, and the medical circumstances surrounding the discharge (i.e., the applicant was diagnosed with mild complicated TBI and an adjustment disorder while on active duty; his post traumatic checklist-military score administered at Landstuhl was indicative of PTSD; the VA granted the applicant a 50 percent disability rating for PTSD claimed as anxiety, mild facet arthropathy L4-5, LS5-S1 and residual TBI which was effective on 29 June 2010), and as a result it is inequitable. 2. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was both proper and equitable and voted not to change it. This action entails restoration of grade to PV2/E-2. 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 came to the unit seeking a medical discharge and fell through the cracks. He struggled with being homeless for almost two years. His unit sent the certified letters to the wrong address and he had no way of knowing the unit’s intentions. He is 50 percent disabled for a Traumatic Brain Injury (TBI), Post Traumatic Stress Disorder (PTSD), and a back injury while on active duty. His discharge vastly affects his ability to maintain a successful career and provide for his family. He desires to attend college and become a medical examiner/coroner. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 15 September 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 6 November 2012 d. Reason/Authority/SPD/RE Code: Unsatisfactory Participation/AR-135-178, Chapter 13 e. Unit of assignment: 375th Engineer Company, Huntsville, AL f. Current Enlistment Date/Term: 5 January 2011/USAR, RMSO (130823) g. Current Enlistment Service: 1 year, 10 months, 2 days h. Total Service: 6 years, 5 months, 26 days i. Time Lost: None j. Previous Discharges: USAR (050823-060510)/a formal discharge was not issued; see orders number 06-145-00028 ARNG (060511-060722)/NA AD (060723-071228)/HD ARNG (071229-080522)/HD USARCG (080523-110104)/NA k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 31B10, Military Police m. GT Score: 98 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (061122-070607)HD q. Decorations/Awards: PH, NDSM, ICM, GWOTSM, AFRM-W/”M” DEV, ASR, OSR r. Administrative Separation Board: No s. Performance Ratings: No t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the US Army Reserve 23 August 2005, for a period of 8 years. He was 18 years old at the time of entry and a high school graduate. He was discharged on 10 May 2006 and a formal discharge was not issued. The applicant enlisted in the Army National Guard on 11 May 2006, for a period of 7 years and 14 weeks. He was 18 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 31B10, Military Police. He was ordered to active duty on 23 July 2006 in support of Operation Iraqi Freedom (OIF), and received an honorable discharge upon completion of mobilization. His record also shows he served a combat tour, earned a PH; and he achieved the rank of PFC/E-3. He was serving in Huntsville, AL when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows on 16 May 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 13, paragraph 13-1, AR 135-178, by reason of unsatisfactory participation. Specifically for the following offenses: a. being absent from at least nine Army Reserve training assemblies within a one year period and failing to provide a valid reason for his absence, and b. failing to attend 16 MUTA battle assemblies during 9-10 July 2011, 17-18 March 2012, 20-22 April 2012 and 5-6 May 2012. 2. Based on the above misconduct 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 the action for 45 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 25 June 2012, the unit commander recommended separation from the US Army Reserve (USAR). The intermediate and senior commanders reviewed the proposed action and recommended an under other than honorable conditions discharge. 4. On 24 October 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 6 November 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 or any actions the Uniform Code of Military Justice (UCMJ). EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. The record contains two negative counseling statements, dated, 16 May 2012 and 11 July 2012, for notification of separation counseling. 2. Reduction/Discharge Orders 12-306-00027, dated 1 November 2012. 3. Four memoranda, letter of instructions for unexcused absences, dated 18 July 2011, 21 March 2012, 23 April 2012 and 7 May 2012, indicating unexcused absences. 4. DD Form 214 dated 23 July 2006, indicating the applicant was ordered to active duty for OIF. 5. NGB Form 22 dated 22 May 2008, indicating he was discharged from the National Guard with an honorable discharge. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided DD Form 293, chronological record of medical care (eight pages), VA compensation decision, certificate, Purple Heart, Citizens Baptist Medical Center, medical documents (five pages), CBHCO Medical Officer Intake Note, and two affidavits of service by mail (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 his characterization of service was carefully considered. 2. After examining the applicant’s record of service, his military records, the documents and e issues submitted with the application, there are several mitigating factors which merit a partial upgrade of the applicant's discharge to general, under honorable conditions for the following reasons: a. Overall length and quality of service: The applicant served 8 month and18 days of his initial contract in the US Army Reserve. He reenlisted in the Army National Guard for 7 years and 14 weeks, he completed 5 years, 9 months, 8 days of that enlistment, giving him a total of 6 years, 5 months, and 26 days of military service thus the preponderance of his service was honorable. b. The record confirms the applicant received a PH for a tour of combat in Iraq. c. Medical circumstances surrounding the discharge (i.e., the applicant was diagnosed with mild complicated TBI, and an adjustment disorder while on active duty; his post traumatic checklist-military score administered at Landstuhl was indicative of PTSD; the VA granted the applicant a 50 percent disability rating for PTSD claimed as anxiety, mild facet arthropathy L4-5, LS5-S1 and residual TBI which was effective on 29 June 2010). 3. This recommendation was made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct. The evidence in this case supports a conclusion that the applicant’s characterization of service was too harsh and as a result, it is inequitable. 4. In view of the foregoing, the characterization of the discharge is inequitable and the analyst recommends the Board grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. 5. The applicant contends he came to the unit seeking a medical discharge and fell through the cracks. The applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention he initiated the process to pursue a medial discharge. 6. Further, 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. 7. The applicant further contends he struggled with being homeless for almost two years. Eligibility for housing supportive program benefits for Veterans does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance. 8. The applicant also contends his unit sent the certified letters to the wrong address and he had no way of knowing the unit’s intentions. 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. 9. The VA document is acknowledged granting the applicant a 50 percent disability rating for service connected conditions. 10. Furthermore, the applicant contends his discharge will vastly affect his ability to maintain a successful career and provide for his family. The Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. 11. The applicant desires to attend college and become a medical examiner/coroner. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 12. Therefore, the reason for discharge being both proper and equitable, the analyst recommends the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 14 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: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new Discharge Order: Yes Change Characterization to: General, Under Honorable conditions Change Reason to: No Change Change Authority for Separation: NA Change RE Code to: NA Grade Restoration to: E-2/PV2 Other: TO: ARBA Promulgation Team. Arlington, VA Date: 14 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 General, Under Honorable conditions. ( X ) This action entails restoration of grade/rank to E-2/PV2. 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) AR20140016248 Page 3 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1