1. Applicant's Name: a. Application Date: 19 December 2014 b. Date Received: 22 February 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, he was accused of receiving unauthorized BAH since 2009. The Army concluded that he was never married, but he was, in fact, married since 2005. He supported his wife by giving her cash since 2005. His military attorney advised him to withhold his marriage certificate during CID's investigation so that they may obtain it themselves. He asserts that the investigation did not gather solid evidence to find him guilty of the BAH fraud charges. He was not afforded the proper opportunities to assist him in making a more educated decision based on the facts and evidence of the investigation prior to his request for discharge in lieu of trial by a court-martial. In a records review conducted at Arlington, VA on 28 April 2017, 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 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 11 August 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: DD Form 458 (Charge Sheet), dated 13 April 2012, reflects the applicant was charged with violation of the UCMJ, Articles 107 and 121. (2) Basis for Separation: The applicant was informed of the following reasons: Charge I: Violation of the UCMJ, Article 107, False Official Statements (three specifications) Charge II: Violation of the UCMJ, Article 121, Larceny and Wrongful Appropriation (two specifications) (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 24 May 2012 (5) Separation Decision Date/Characterization: 29 July 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 March 2008 / 4 years (DD Form 214 shows extension was at the request and for the convenience of the government) b. Age at Enlistment / Education / GT Score: 26 / GED / 101 c. Highest Grade Achieved / MOS / Total Service: E-5 / 36B10, Financial Management and 92G10, Food Service Operations Specialist / 8 years, 27 days d. Prior Service / Characterizations: RA, 14 February 2000 to 23 June 2000 / UNC (Break in Service) RA, 15 July 2004 to 13 March 2008)/ HD (may have involved a STOP LOSS extension) e. Overseas Service / Combat Service: SWA, Germany / Kuwait/Iraq (1 December 2005 to 1 December 2006 and 1 December 2007 to 15 February 2009) f. Awards and Decorations: ARCOM-4, AAM-5, AGCM, NDSM, ICM-CS, NCOPDR, ASR, OSR-3, CAB, NATOMDL, MUC g. Performance Ratings: Three NCOERs as follows: 1 October 2009 thru 1 June 2010, Fully Capable 1 July 2010 thru 30 June 2011, Fully Capable 1 July 2011 thru 22 December 2011, Marginal h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for being AWOL; failing to report to his appointed place of duty at the prescribed time; being enrolled in ASAP; and being required to submit random alcohol tests. FG Article 15, dated 22 December 2011, for failing to go to his appointed place of duty at the prescribed time (28 November 2011), violating a lawful general regulation on two separate occasions (between 24 and 28 November 2011, and 16 October 2011), and making a false official statement (28 November 2011). The punishment consisted of a reduction to E-4, forfeiture of $1,162 pay per month for two months (suspended), 45 days of extra duty and restriction, and an oral reprimand. CID Report, dated 26 January 2012, and its associated documents, indicates the applicant was the subject of an investigation for larceny, fraud, and false official statement. Charge Sheet described at the preceding paragraph 3c(2). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; two character reference statements; marriage certificate; Final Judgment of Divorce document; and General Appearance court document. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has been employed since his discharge 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. AR 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, "In Lieu of Trial by Court-Martial." The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant's record of service, and the issues and documents submitted with his application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel voluntarily requested, in writing, a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran's benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents no other acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority. The applicant's contentions that included not being afforded the proper opportunities to assist him in making a more educated decision based on the facts and evidence of the investigation prior to his request for discharge in lieu of trial by a court-martial and that there was no solid evidence to find him guilty of the BAH fraud charges, 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 contentions that he may have been unjustly discharged, including being charged with the offenses cited on the charge sheet. 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 third party statements provided with the application speak highly of the applicant's performance and character. One statement recognized his outstanding work performance after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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. The character of the applicant's discharge is commensurate with his overall service record. 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. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 28 April 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD / RE Code to: No Change e. Restore (Restoration of) Grade to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160004658 1