1. APPLICANT’S NAME: a. Application Date: 27 April 2015 b. Date Received: 8 May 2015 c. Counsel: 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 honorable. The applicant states, in pertinent part and in effect, the courts-martial and the show cause board which separated him were two separate events. He was found guilty and received punishment for violating Article 134, UCMJ for unauthorized wear of medals and decorations, and Article 107 for making a false official statement on 23 June 2010. However, at no time by the General Court-Martial, was he summarily dismissed or given any type of characterization of discharge. In fact, after his incarceration, he returned to full duty. Immediately following the court-martial and his 30-day incarceration on 1 August 2010, he was summoned to appear before a Board of Inquiry to determine his fitness to remain on active duty. The elimination action was delayed because his court-martial case had not been through the appeals process. Therefore, he remained on active duty until he received another summons, a year after his appeal was heard by the US Court of Appeals. On 25 Jul 2012, the Commander of the United States Army Maneuver Center of Excellence summoned him before a Board of Inquiry for misconduct, moral, and professional dereliction which he was previously court-martialed for. The results of the board were immediate elimination with an Under Other Than Honorable Conditions discharge. He asserts besides the epitome of double jeopardy, the board was unfair for the reasons addressed in the “Request for Redress under Article 138, UCMJ.” The commanding general had agreed, although the final result and appeal were upheld by the appellate authority and the board’s decision, they did not have all of the evidence. After carefully examining the applicant’s record of service during the period of enlistment under review, the Board determined the characterization of service was too harsh based on length and quality of the applicant’s service, to include his combat service and the circumstances surrounding the discharge, i.e., an in-service DX of bipolar and PTSD. It was concluded that the other behavioral health issues may have been a causative factor in the misconduct that led to the discharge. After carefully weighing that fact against the severity of the applicant’s misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant’s service to general, under honorable conditions. Accordingly, in a Personal Appearance hearing conducted at Arlington, VA on 22 February 2016, and by a 3-2 vote, 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 the discharge was both proper and equitable, and by a 5-0 vote, the Board voted not to change it. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Unacceptable Conduct / AR 600-8-24, Paragraph 4-2b / JNC / NA / Under Other Than Honorable Conditions b. Date of Discharge: 27 November 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 July 2011 (2) Basis for Separation: The applicant was informed an elimination action was initiated based on being convicted by a General Court-Martial on 23 June 2010, for the following offenses and he was required to show cause for retention under the provisions of AR 600-8-24, paragraph 4-2b, misconduct and moral or professional dereliction: Wrongfully and without authority, wore on his uniform on divers occasions between 16 October 2006 and 12 November 2009, the Combat Infantryman Badge, Ranger Tab, Sapper Tab, Southwest Asia Service Medal with three bronze service stars, and the Kuwait Liberation Medal – Government of Saudi Arabia. With intent to deceive, on or about 16 October 2006, made to the United States Army, a false official statement, namely a Department of the Army photograph, dated 16 October 2006, which statement was false in that [the applicant] was wrongfully and without authority wearing on his uniform the Combat Infantryman Badge, Ranger Tab, Sapper Tab, Southwest Asia Service Medal with three bronze service stars, and the Kuwait Liberation Medal – Government of Saudi Arabia. (3) Legal Consultation and Appearance before BOI Date: 12 January 2012 (4) Recommended Characterization: Under Other Than Honorable Conditions discharge (5) DA Board for Review of Eliminations Date and Recommendation: 19 July 2012, elimination with an Under Other Than Honorable Conditions discharge (6) Physical Evaluation Board Date and Recommendation: 20 August 2012, the applicant be placed on the Temporary Disability Retired List with a 50 percent rating (7) Separation Decision Date/Characterization: 1 November 2012 / Under Other Than Honorable Conditions discharge 4. SERVICE DETAILS: a. Date/Period of Enlistment: 25 June 2004 / pursuant to Active Duty Orders and subsequent ADSOs b. Age at Enlistment/Education/GT Score: 31 / BA degree / NA c. Highest Grade Achieved/MOS/Total Service: O-3 / 91A, Material Maintenance and Munitions Management Officer (Ordnance) / 18 years, 6 months, 34 days d. Prior Service/Characterizations: ARNG (25 June 1990-9 June 1991) / NA          IADT   (10 June 1991-12 September 1991) / UNC          ARNG (13 September 1991-12 March 1992) / HD          RA      (13 March 1992-3 March 1996) / HD 040214          RA      (4 March 1996-26 May 1998) / HD 060527          RA      (27 May 1998-29 June 1999) / HD 070620          RA      (30 June 1999-29 June 2001) / HD (DD Form 214 indicates separation date as 29 June 2001; however, an enlistment contract indicates, he reenlisted in the USAR on 6 June 2001)          USAR (6 June 2001-25 August 2002) / NA for 4 yrs          ROTC (26 August 2002-16 May 2004) / NA          USAR (17 May 2004-24 June 2004) / NA e. Overseas Service/Combat Service: Italy, SWA / Kuwait (24 September 2005-25 September 2006), Iraq (25 June 2007-29 March 2008) f. Awards and Decorations: BSM; ARCOM-2; AAM-9; ARCAM; AGCM-3; NDSM-2; ICM-CS; GWOTSM; AFEM; AFSM; HSM; KLM; SWASM-3BSS; NPDR-2; ASR; OSR-3; NATO MDL; JMUA; ASUA; CAB; CIB g. Performance Ratings: Yes, as follows: 16 February 2005–31 July 2005, Change of Rater, Outstanding Performance, Must Promote 1 August 2005–31 July 2006, Annual, Outstanding Performance, Must Promote 1 August 2006–31 May 2007, Change of Rater, Outstanding Performance, Must Promote 1 June 2007–9 April 2008, Change of Rater, Outstanding Performance, Must Promote 10 April 2008–9 April 2009, Annual, Outstanding Performance, Must Promote 10 April 2010–14 August 2009, Change of Rater, Satisfactory Performance, Promote 15 August 2009–13 August 2010, Change of Rater, Unsatisfactory Performance, Do Not Promote (Referred) 14 August 2010–29 June 2011, Change of Rater, Outstanding Performance, Must Promote 30 June 2011–15 June 2012, Change of Rater, Satisfactory Performance, Promote 16 June 2012–26 November 2012, Discharge, Satisfactory Performance, Promote h. Disciplinary Action(s)/Evidentiary Record: Permanent Orders 122-67, dated 1 July 1993, indicates the applicant was awarded “Ranger Tab,” effective 1 September 1993; Permanent Orders 140-10, dated 15 February 1994, indicates the applicant was awarded “Combat Infantryman Badge,” for period 20 September 1993 through 20 October 1993, for combat action during Operation Restore Hope. Permanent Orders 360-059, dated 26 December 2007, indicates the applicant was awarded “Combat Action Badge,” for period 6 October 2007. General Court-Martial Order Number 7, dated 17 August 2010, shows no entries of any pleas or findings to Charge I, and Charge II and its six specifications, but were dismissed on 1 June 2010. General Court-Martial Order Number 10, dated 20 September 2010, indicates the applicant was found guilty of the following charges on 23 June 2010: The sentence, approved on 20 September 2010, consisted of a reprimand, confinement for 30 days, and forfeiture of $1,000 pay per month for five months. Charge I, violation of Article 134, UCMJ, for wearing unauthorized awards on his uniform on divers occasions between 16 October 2006 and 12 November 2009. Charge II, violation of Article 107, UCMJ, for making a false official statement on divers occasions on 16 October 2006. Board of Inquiry Report of Proceedings, dated 12 January 2012, with its findings and recommendations, and the GCMCA’s Board of Inquiry Report and Rights Advisement memorandum, dated 13 February 2012, which indicates the board recommended his elimination with a UOTHC discharge, and that the applicant’s case would be forwarded to Commander, US Army Human Resources Command. Licensed Clinical Psychologist letter, dated 4 June 2012, indicates the applicant had been treated in an outpatient psychotherapy since 9 October 2009 for emotional distress and reported symptoms of PTSD. Psychiatry letter, dated 7 June 2012, provides the applicant was being treated for PTSD diagnosis. Army Board of Review for Eliminations, Transcript of Hearing, dated 19 July 2012, indicates the Board in a closed session and by secret written ballot, recommended the applicant be eliminated from the Army with a UOTHC characterization of Service. Informal Physical Evaluation Board (PEB) Proceedings, dated 21 August 2012, indicates the applicant concurred, waived a formal hearing, and did not request reconsideration of his VA rating, upon the boards recommended disposition of finding the applicant physically unfit and recommended a rating of 50 percent, and that the applicant be placed on TDRL (Temporary Disability Retired List) and with a reexamination during May 2013. Request for Redress and its response, dated 15 August 2012 and 29 August 2012, respectively. Officer Record Brief, dated 24 October 2012, is self-explanatory. i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: An informal Physical Evaluation Board (PEB) Proceedings, dated 20 August 2012 as a PEB Authentication and 22 September 2012, as USAPDA Authentication for the Secretary of the Army,” indicates the applicant received a 50 percent disability rating for a diagnosis of “Bipolar Disorder II,” which was “[r]ated by the VA as PTSD (MEB DX 1),” and “[t]his condition was rated by the VA as PTSD (VI/V3 yes).” 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214 for service under current review; Medical Evaluation Board (MEB) Proceedings, dated 27 December 2011; Informal Physical Evaluation Board (PEB) Proceedings, dated 21 August 2012; VA benefits letter, dated 26 March 2012; VA Disability Evaluation System Proposed Rating, dated 23 March 2012, and its associated documents; MEB/PEB Counseling Checklist, dated 21 August 2012; and PEBLO Estimated Disability Compensation Worksheet and Advice of Right to Counsel, dated 21 August 2012; PEB. Additional Evidence: Referral to a Board of Inquiry, dated 6 January 2011, and its associated documents; memorandum, dated 19 September 2011, subject: Estimated Retirement Benefits, rendered by the installation operations audits, and its enclosures; Complaint of Wrong under Article 138, UCMJ for excessive and unusual punishment against [the applicant] was rendered by the applicant, and its listed enclosures; memorandum, dated 9 October 2012, subject: Notification of Reconsideration of Elimination Action; CG’s response to request for redress under Article 138, UCMJ, dated 11 September 2012; applicant’s rebuttal for show cause board, dated 25 August 2012; Psychiatry letter, dated 28 January 2010; licensed clinical psychologist letter, dated 1 February 2010; estimated retirement benefits memorandum, dated 5 August 2010; Change of Rater OER for period 14 August 2010 through 29 June 2011; ORB, dated 20 June 2011; notification of final action on officer elimination/physical evaluation board case, dated 13 November 2012; DASA Approved BOI Result, dated 6 November 2012, and DASA decision memorandum, dated 1 November 2012; Army Board of Review for Eliminations transcript of hearing, dated 19 July 2012; DD Form 214 for service ending 29 June 2001; ORB, dated 14 November 2012; Complaint of Wrong, Article 138, UCMJ – Excessive and Unusual Punishment against [the applicant], dated 31 May 2012, rendered by the applicant; Board of Inquiry Report and Rights Advisement memorandum, dated 13 February 2012, and applicant’s acknowledge of receipt; Report of Proceedings by Investigating Officer/Board of Officers report, dated 12 January 2012, and its associated documents; Charge Sheet with referral date of 19 January 2010; seven NCOERs for period (July 2001 through June 2002), (April 1999 through March 2000), (1 August 2005 through 31 July 2006), (16 February 2005-31 July 2005), (1 August 2006-31 May 2007), (1 June 2007 through 9 April 2008), and (9 April 2008 through 8 April 2009); Data Sheet for Retirement Pay Calculations; Resignation for the Good of the Service in Lieu of General Court-Martial, undated; two Change of Rater OERs for period 1 June 2007 through 9 April 2008 and 10 April 2009 through 14 August 2009; initiation of elimination acknowledgment, dated 16 July 2011; rebuttal for show cause board, dated 26 August 2010; request for recall of PEB, dated 15 March 2012, rendered by a senior trial counsel; initiation of elimination notification, dated 25 July 2011; memorandum referring elimination to board of inquiry, dated 6 September 2011; sequence of events list; termination of elimination action on 6 July 2010, but required to show cause for retention notification, dated 25 July 2011; Change of Rater OER for period 14 August 2010 through 29 June 2011; General Court-Martial Order Number 10, dated 20 September 2010; OER Support Form; Change of Rater OER for period 10 April 2009 through 14 August 2009; licensed clinical psychologist letter, dated 4 June 2012; Psychiatry letter, dated 7 June 2012; Change of Rater OER for period 30 June 2011 through 15 June 2012; ORB, dated 13 November 2012; and request to reconsider officer elimination action, dated 5 November 2012, rendered by the applicant. 6. POST SERVICE ACCOMPLISHMENTS: None. 7. REGULATORY CITATION(S): Army Regulation (AR) 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JNC" as the appropriate code to assign Soldiers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4, paragraph 4-2b, unacceptable conduct. 8. DISCUSSION OF ISSUE(S): The applicant requests an upgrade of the characterization of his discharge from under other than honorable conditions to honorable. The applicant’s record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms his discharge based on an unacceptable conduct was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by Army officers. It brought discredit on the Army and was prejudicial to good order and discipline. The applicant seeks relief contending, the courts-martial and the show cause board which separated him were two separate events. He was found guilty and received punishment for violating Article 134, UCMJ for unauthorized wear of medals and decorations, and Article 107 for making a false official statement on 23 June 2010. However, at no time by the General Court-Martial, was he summarily dismissed or given any type of characterization of discharge. In fact, after his incarceration, he returned to full duty. Immediately following the court-martial and his 30-day incarceration on 1 August 2010, he was summoned to appear before a Board of Inquiry to determine his fitness to remain on active duty. The elimination action was delayed because his court-martial case had not been through the appeals process. Therefore, he remained on active duty until he received another summons, a year after his appeal was heard by the US Court of Appeals. On 25 Jul 2012, the Commander of the United States Army Maneuver Center of Excellence summoned him before a Board of Inquiry for misconduct, moral, and professional dereliction which he was previously court-martialed for. The results of the board were immediate elimination with an Under Other Than Honorable Conditions discharge. He asserts besides the epitome of double jeopardy, the board was unfair for the reasons addressed in the “‘Request for Redress under Article 138, UCMJ.’” The commanding general had agreed although the final result and appeal were upheld by the appellate authority and the board’s decision; they did not have all of the evidence. The applicant’s contentions were carefully considered. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge. The applicant contends he was punished twice for what he was convicted of and received punishment by a General Court-Martial, in terms of “besides the epitome of double jeopardy.” However, Army Regulation 600-8-24, paragraph 4-4e (Limitations), in pertinent part, stipulates that punishment resulting from trial by court-martial for misconduct and subsequent use of that fact in support of elimination under this regulation does not constitute double jeopardy. Although the applicant did not raise any issues concerning his medical condition or the PEB, a careful review of his record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder symptoms existed. The separation authority considered the medical evidence and the PEB proceedings. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct it can grant appropriate relief by changing the reason for separation and/or the characterization of service. 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: The applicant submitted no additional documents or contentions. 9. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20150008644 1