AR20140001692

IN THE CASE OF: Mr.

BOARD DATE: 9 January 2015

CASE NUMBER: AR20140001692
___________________________________________________________________________

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 APPLICANTS 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, his discharge was based on the inattention and severity of the units action; and he was unjustly terminated by his previous unit. He was told he would be coded excused for the period; and during that three month period his chain of command did not contact him. He was awarded an ARCOM during ECT for his leadership ability. He requests his rank be restored; this would help him provide for his family. He desires to reenlist in the reserve and continue his military career.

DISCHARGE UNDER REVIEW INFORMATION:

a. a. Application Receipt Date: 23 January 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 11 June 2009 d. Reason/Authority/SPD/RE Code: Unsatisfactory Participation/135-178, Chapter 13
e. Unit of assignment: HQ Command, 863rd Engineer Company, Darien, IL f. Current Enlistment Date/Term: NIF, NF
g. Current Enlistment Service: could not be determined from the available record
h. Total Service: could not be determined from the available record
i. Time Lost: NIF j. Previous Discharges: IADT (041020-050317)/NIF (Concurrent Service)
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 92G10, Food Service Specialist
m. GT Score: NIF
n. Education: NIF
o. Overseas Service: NIF
p. Combat Service: None
q. Decorations/Awards: AAM, NDSM, ASR
r. Administrative Separation Board: NIF
s. Performance Ratings: No
t. Counseling Statements: NIF
u. Prior Board Review: No

SUMMARY OF SERVICE:

The applicant enlisted in the US Army Reserve, the date of enlistment, his age at the time and education level was not in the file. He was ordered to initial active duty training (IADT) on 20 October 2004, trained in and awarded the Military Occupational Specialty (MOS) 92G10, Food Service Specialist. Upon completion of training he was released back to his unit, the characterization of service was not in the file. His record does not show any combat service, he earned an AAM; and he achieved the rank of SPC/E-4. He was serving in Darien, IL when his discharge was initiated.
SEPARATION FACTS AND CIRCUMSTANCES:

1. The applicants service record is void of the specific facts and circumstances concerning the events which led to his discharge from the US Army Reserve.

2. The available evidence in the record indicates on 11 June 2009, DA, HQs, 416th Theater Engineer Command, Darien, IL, Orders 09-162-00006, discharged the applicant from the US Army Reserve, effective 11 June 2009, with an under other than honorable conditions discharge. The applicant was reduced to the lowest enlisted rank.

3. The record contains a properly constituted discharge order which indicates the applicant was discharged under the provisions of Chapter 13, AR 135-178, with a characterization of service of under other than honorable conditions.

4. The applicants service record does not contain any evidence of unauthorized absences, time lost, negative counseling statements or any actions under the Uniform Code of Military Justice (UCMJ). Also, the applicant had minus three days of excess leave from 1 January 2005 through 3 January 2005.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Discharge Orders number 09-162-00006, dated 11 June 2009.

2. Reduction Orders number 09-162-00005, dated 11 June 2009.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, certificate, AAM, DA Form 638 (Recommendation for Award, two pages), applicants resume (four pages), discharge orders, and a DD Form 214.

POST-SERVICE ACTIVITY:

The applicant did not provide any information 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 accrue during a 1 year period and attempts to have the Soldier respond or comply with orders or correspondence have resulted in the Soldiers 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 applicants request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicants record of service, his available military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge.

2. The applicants record is void of the specific facts and circumstances concerning the events which led to the former Soldiers discharge from the US Army Reserve. However, the record shows on 11 June 2009, DA, HQS, 416th Theater Engineer Command, Darien, IL, Orders 09-162-00006, discharged the applicant from the Army Reserve, with an under other than honorable conditions discharge.

3. Barring evidence to the contrary, the presumption of government regularity shall prevail, as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4. The applicant contends his discharge was based the inattention and severity of the units action; he was unjustly terminated by his previous unit; and during the three month period his chain of command did not contact him. These contentions were carefully considered; however, there is insufficient evidence available in the official record to make a determination as whether they have merit.

5. The applicant further contends he was awarded an ARCOM during ECT for his leadership ability. The applicant submitted with his application a recommendation for award and an award certificate; both indicated the applicant was awarded an AAM and not an ARCOM as he stated in his application.

6. The applicant requests his rank be restored; this would help him provide for his family. The Army Discharge Review Board is not empowered to restore former service member’s grade, rate or rank. AR 600-8-19, paragraph 10-15a, states when the separation authority determines that a Soldier is to be discharged from the Service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade. Further Board action is not required for this reduction.
7. The applicant desires to reenlist in the Reserve and continue his military career. 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.

8. If the applicant desires a personal appearance hearing, it will 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.

9. Therefore, based on the available evidence and the presumption of government regularity, it appears that based on the discharge order, the characterization of service was both proper and equitable; the analyst recommends the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 9 January 2015 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character Change: 0 No Change: 5
Reason Change: 0 No Change: 5
(Board member names available upon request)

Board Action Directed:
Issue a new Discharge Order: No
Change Characterization to: No Change
Change Reason to: No Change
Change Authority for Separation: NA
Change RE Code to: NA
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) AR20140001692

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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