AR20140001594

IN THE CASE OF: Mr.

BOARD DATE: 4 February 2015

CASE NUMBER: AR20140001594
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicants record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the circumstances surrounding his discharge that involved capricious actions by his chain of command, and as a result it is inequitable. Accordingly, the Board voted to grant 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 proper and equitable and voted not to change it. This action entails restoration of grade to PFC/E-3.

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 APPLICANTS REQUEST AND STATEMENT:

1. The applicant requests to upgrade the characterization of his service from under other than honorable to honorable, and to change the narrative reason for his discharge.

2. The applicant states, in effect, he assumes his discharge was due to APFT failure, under the authority of AR 138-175. However, upon reading Chapter 9, which explains why a Soldier can be discharged, he discovered paragraph 9-2e, which states that a Soldier may be discharged for failure to pass an APFT without medical limitation. Throughout his whole military career, he has been trying to afford treatment for his asthma that finally started in September 2013. If he cannot get his discharge revoked for wrongful discharge, he would like, at least, an upgrade. He was not a problem Soldier and had no conduct issues. His current discharge ruins any chance of improving his quality of life.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 22 January 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 15 November 2013
d. Reason/Authority/SPD/RE Code: AR 135-178 / Unsatisfactory Performance (per IWS)
e. Unit of assignment: 602nd MP Co, Bossier City, LA
f. Current Enlistment Date/Term: 29 September 2007, 8-year MSO (6-year TPU)
g. Current Enlistment Service: 6 years, 1 month, 17 days
h. Total Service: 6 years, 1 month, 17 days
i. Time Lost: NIF
j. Previous Discharges: IADT (080107-080703) / HD
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 52C10, Utility Equipment Repairer
m. GT Score: NIF
n. Education: HS Graduate and some college
o. Overseas Service: None
p. Combat Service: None
q. Decorations/Awards: NDSM; ASR
r. Administrative Separation Board: NIF
s. Performance Ratings: None
t. Counseling Statements: NIF
u. Prior Board Review: No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the US Army Reserve on 29 September 2007, for a period of 8 years. He was 20 years old at the time of entry and a high school graduate and some college. He was trained in and awarded military occupational specialty (MOS) 52C10, Utility Equipment Repairer. His record documents no acts of valor or significant achievement. He completed 6 years, 1 month, and 17 days of reserve and active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The available evidence shows the applicants record is void of the specific facts and circumstances concerning the events that led to his discharge from the United States Army Reserve.

2. The record indicates that on 12 November 2013, Department of the Army, Headquarters, 81st Regional Support Command, Fort Jackson, SC, Orders 13-316-00073, discharged the applicant from the United States Army Reserve, effective 15 November 2013, with an under other than honorable conditions discharge.

3. The applicants service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Discharge orders.

2. There is no negative counseling statement or actions under the UCMJ.

3. Periodic Health Assessment, dated 22 August 2009, indicates the applicant had a history of asthma. The assessment also provided a copy of the applicants profile for asthma, dated 1September 2009.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application and two physical profiles, dated 29 November 2010 and 5 June 2013.

POST-SERVICE ACTIVITY:

The applicant provided none.

REGULATORY AUTHORITY:

1. Army Regulation 135-178 sets forth the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities.

2. The characterization is based upon the quality of the Soldiers service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army Regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization.

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 applicants request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicants record of service and the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge or to change the narrative reason for his discharge in his IWS record. The available record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army Reserve.

2. The applicants available record contains a properly constituted set of Orders which was authenticated by the appropriate military authority. This document identifies the characterization of the discharge and the presumption of government regularity prevails in the discharge process.

3. Barring evidence to the contrary, it appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4. The applicant provided insufficient evidence to demonstrate that either the command’s action was erroneous or that his service mitigated the type of discharge and the reason for his discharge that he received from the US Army Reserve.

5. The applicant contentions were carefully considered. However, a determination as to the merit of these contentions cannot be made because the facts and circumstances leading to the discharge are unknown. The burden of proof remains with the applicant to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration.

6. If the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Boards consideration because they are not available in the official record.

7. Therefore, based on the available evidence, it appears the reason for discharge and the characterization of service were both proper and equitable, thus recommend the Board deny relief at this time.

BOARD DETERMINATION AND DIRECTED ACTION

After carefully examining the applicants record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the circumstances surrounding his discharge that involved capricious actions by his chain of command, and as a result it is inequitable. Accordingly, the Board voted to grant 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 proper and equitable and voted not to change it. This action entails restoration of grade to PFC/E-3.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 4 February 2015 Location: Washington, DC

Did the Applicant Testify, No Counsel: None Witnesses/Observers: No

Board Vote:
Character Change: 3 No Change: 2
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-3/PFC
Other: TO: ARBA Promulgation Team. Arlington, VA Date: 4 February 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 ) Restoration of grade to E-3/PFC

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) AR20140001594

Page 5 of 5 pages

ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

1