1. APPLICANT’S NAME: a. Application Date: 16 March 2015 b. Date Received: 19 March 2015 c. Counsel: No 2. REQUEST, REASON, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of his discharge from under other than honorable conditions to general, under honorable conditions or honorable. The counsel on behalf of the applicant states, in pertinent part and in effect, the request for reconsideration is based on substantial and relevant evidence that were not readily available to the previous ADRB. The applicant’s chain of command was not informed of the military judge’s dismissal of Charge III at the applicant’s Article 39(a) hearing on 19 January 2011, during their review of the issue of the characterization of service for the applicant’s discharge. The Board was not properly informed and was also not aware of the dismissal. Consequently, the applicant did not have a fair and equitable review of his characterization of service. Accordingly, the UOTH characterization must be set aside due to being decided on under faulty conditions. The Board was also not informed the applicant had not received proper transportation counseling for his DITY move. He was never advised or counseled that concrete and cement items were illegal to ship on a DITY move. The Board was not made aware the applicant had voluntarily reimbursed the government in the amount of $12,505.42, for any and all losses the government may have incurred. As a result, the applicant did not receive a fair hearing and due process by the previous Board. In a records review conducted at Arlington, Virginia on 11 January 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request.) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: In Lieu of Trial by Court-Martial / AR 600-8-24, Paragraph 3-13 / DFS / NA / Under Other Than Honorable Conditions b. Date of Discharge: 5 April 2011 c. Separation Facts: (1) DD Form 458, Charge Sheet: On 23 July 2010, the applicant was charged with the following charges: Charge I: Violation of Article 121, UCMJ, for stealing, a value of more than $12,000, property of the government on 24 May 2010. Charge II: Violation of Article 132, UCMJ, for making a fraudulent claim against the United States in the amount of more than $12,000 on 11 May 2010. Charge III: Violation of Article 133, UCMJ, for wrongfully and dishonorably increasing his household goods weight from 3,620 to 11,720 pounds by adding unauthorized building materials, to wit: 8,100 pounds of concrete mix during a DITY move on 21 April 2010. (2) Basis for Separation: Pursuant to applicant’s request for discharge under the provisions of Chapter 3, AR 600-8-24, Resignation, In Lieu of Trial by Court-Martial (3) Recommended Characterization: Under Other Than Honorable Conditions discharge (4) Legal Consultation Date: 20 January 2011 (The applicant requested resignation for the good of the service in lieu of a General Court-Martial.) (5) Administrative Separation Board: NA (6) Separation Decision Date/Characterization: 17 March 2011 / Under Other Than Honorable Conditions discharge 4. SERVICE DETAILS: a. Date/Period of Entry on Active Duty: 27 May 2006 / 8 years through West Point appointment (5-year ADSO and 3-year ADSO for graduate school) b. Age at Entry on Active Duty/Education/GT Score: 21 / BS Degree / NA c. Highest Grade Achieved/MOS/Total Service: O-3 / 15A C2, Aviation, General / 4 years, 10 months, 9 days d. Prior Service/Characterizations: None / NA e. Overseas Service/Combat Service: None / None f. Awards and Decorations: ARCOM; AAM; NDSM; GWOTSM; ASR g. Performance Ratings: Yes, three OERs as follows: A “Change of Rater” report for period 19 October 2007-11 June 2008 (Outstanding Performance, Must Promote and Best Qualified); An “Annual” report for period 12 June 2008-11 June 2009 (Outstanding Performance, Must Promote and Best Qualified); and A “Change of Rater” report for period 12 June 2009-31 March 2010 (Outstanding Performance, Must Promote and Best Qualified); h. Disciplinary Action(s)/Evidentiary Record: Charge Sheet described at the preceding paragraph 3c(1). CID Report, dated 13 July 2010, indicates the applicant was the subject of an investigation for committing frauds against the United States, larceny of government funds, and making a false official statement. Memorandum, dated 26 August 2010, subject: Legal Review – Article 32 Investigation: United States v. [the applicant], indicates the investigation was found legally sufficient and the investigating officer recommended trial by a General Court-Martial for the three charges listed on the Charge Sheet. Investigating Officer’s Report, dated 25 August 2010, with memorandum, dated 25 August 2010, subject: Finding and Recommendations, Article 32 Hearing, United States Government vs. [the applicant], and a summarized Article 32(b) Hearing Proceedings. Memorandum, dated 25 January 2011, subject: Request for Approval of Resignation with General Discharge, indicates the applicant apologized to his chain of command in regards to “claiming a fraudulent DITY move for selfish monetary gain [was] shameful and regrettable” and he “had no history of this type of misconduct or any misconduct before this violation.” i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Applicant’s counsel-authored briefs, dated 16 March 2015 and 28 October 2014; ADRB letter, dated 8 March 2013; summarized Article 39(a) session proceedings; Authentication of Record of Trial, dated 13 May 2011; memorandum, undated, subject: Request for Resignation for the Good of the Service in lieu of General Court-Martial – [the applicant], rendered by a staff judge advocate; Charge Sheet with referral date of 23 July 2010; the GCMCA’s recommendation, dated 25 January 2011; memorandum, undated, subject: Withdrawal and Dismissal of Court-Martial charge pertaining to United States v. [the applicant]; ADRB CRD, dated 13 November 2012; Statement of Understanding for Movement of Personal Property, dated 31 March 2010; DITY Information Data Sheet; Inventory of Household Goods; Personal Property Inventory Worksheet; Cash Collection Voucher, dated 23 August 2010; applicant’s counsel record, dated 27 May 2015; CMD letter, dated 29 April 2015; ADRB letter, dated 8 March 2013; CMD letter, dated 8 December 2014; posted note; extracted pages of AR 15-180, Army Discharge Review Board; and extracted pages of DoDD 1332.28. 6. POST SERVICE ACCOMPLISHMENTS: None. 7. REGULATORY CITATION(S): Army Regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officers. Chapter 3, paragraph 3-13 outlines the rules for processing requests for resignation for the good of the Service in lieu of trial by a general court-martial. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. An officer will normally receive an under other than honorable conditions when they resign for the good of the service, are dropped from the rolls of the Army, are involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance as a result of an act or acts of misconduct. 8. DISCUSSION OF ISSUE(S): The applicant requests an upgrade of the characterization of his discharge from under other than honorable conditions to general, under honorable conditions or honorable. The applicant’s record of service, and the issues and documents submitted with his application were carefully reviewed. The record indicates the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge. The applicant voluntarily requested resignation in lieu of trial by general court-martial. The applicant seeks relief contending, the request for reconsideration is based on substantial and relevant evidence that were not readily available to the previous ADRB. The applicant’s chain of command was not informed of the military judge’s dismissal of Charge III at the applicant’s Article 39(a) hearing on 19 January 2011, during their review of the issue of the characterization of service for the applicant’s discharge. The Board was not properly informed or made aware of the dismissal. Consequently, the applicant did not have a fair and equitable review of the characterization of his service. Accordingly, the UOTH characterization must be set aside due to being decided under faulty conditions. The Board was also not informed the applicant had not received proper transportation counseling for his DITY move. He was never advised or counseled that building materials were illegal to ship on a DITY move. The Board was not made aware the applicant had voluntarily reimbursed the government in the amount of $12,505.42, for any and all losses the government may have incurred. As a result, the applicant did not receive a fair hearing and due process by the previous Board. The applicant correctly revealed that Charge III and its specification as listed on the charge sheet was dismissed by a military judge, during an Article 39(a) session as documented in the record of trial the applicant provided. However, notwithstanding the dismissed charge that was included in his discharge proceedings, it appears that the rights of the applicant were not prejudiced by the error. Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was prejudicial in nature. Charges I and II reflecting larceny of government funds and filing of a false claim arose from the same facts as the dismissed charge. Dismissal of C0harge III did not lessen the severity of the misconduct alleged in Charges I and II. The applicant’s service record contains few significant favorable entries. The new evidence did not create a substantial doubt that the discharge would have been any different if the alleged error of referencing the dismissed Charge III had not occurred. Regarding the applicant’s contentions that the Board was also not informed the applicant had not received proper transportation counseling for his DITY move, nor was he advised or counseled that building materials were illegal to ship on a DITY move, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial creditable evidence to rebut the presumption. As indicated in the applicant’s previous records review, the applicant consulted with a defense counsel and voluntarily, and in writing, requested separation from the Army in lieu of trial by a court-martial under the provisions of Chapter 3, paragraph 3-13, AR 600-8-24, and the convening authority approved the request. Further, officers will normally receive an under other than honorable conditions characterization when they resign for the good of the service. The applicant is commended for making restitution to the government; however, in review of the applicant’s entire service record and the reasons for the discharge, this act does not overcome the characterization of service granted. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional document(s): a. ABF invoice, dated 27 April 2010 - 2 pages b. HHG weight invoice, dated 20 May 2010 – 2 pages c. IG Action Report, dated 10 May 2010 – 2 pages d. Travel Voucher, dated 21 May 2010 – 2 pages e. DA Form 3881, dated 10 June 2010 – 2 pages 2. The applicant presented no additional contentions. 3. Witness: Yes In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. 9. BOARD ACTION DIRECTED: a. Issue a New DD-214: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD/RE Code to: No Change e. Restore Grade to: NA AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NIF - Not in File SPCM - Special Court Martial BCD - Bad Conduct Discharge HS - High School OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 HD - Honorable Discharge OMPF - Official Military Personnel File TBI – Traumatic Brain Injury CID - Criminal Investigation Division MP – Military Police PTSD – Post-Traumatic Stress Disorder UNC - Uncharacterized Discharge ELS – Entry Level Status IADT – Initial Active Duty Training RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable SCM - Summary Court Martial ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150005845 4