1. Applicant's Name: a. Application Date: 28 March 2017 b. Date Received: 3 April 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant through legal counsel requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, that his discharge is inequitable because he was denied a request for individual military counsel while pending court-martial charges. He contends he was detailed three different defense counsellors over the course of his case, and his counsel never had the time or opportunity to independently investigate the charges. His discharge is equally inequitable where the military has lost all records of his court-martial charges and resignation, thus depriving him of the opportunity to rebut and contest the circumstance of his resignation. The only records in existence documenting his resignation is his DD Form 214. He believes the Army's failure to properly ensure that his charge sheet and resignation became part of his record to enable an appeal warrants an upgrade as there is no supporting documentation for his discharge or characterization of service. In a personal appearance hearing conducted at Arlington, VA on 23 April 2018, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service to include combat service, a prior period of honorable service, board judgement, and post-service accomplishments. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (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, Chapter 3-13 / DFS / NA / Under Other Than Honorable Conditions b. Date of Discharge: 9 February 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 April 1998 / Indefinite b. Age at Enlistment / Education / GT Score: 33 / BA / NA c. Highest Grade Achieved / MOS / Total Service: O-5 / 18A 5W Special Forces, 11A 5W Infantry / 19 years, 7 months, 27 days d. Prior Service / Characterizations: ROTC-Cadet (9 August 1984 to 12 June 1986) / NA USAR Officer Appointment (13 June 1986) RA, 13 June 1986 to 1 June 1996 / HD USARCG, 2 June 1996 to 11 April 1998 / NIF e. Overseas Service / Combat Service: SWA / Kuwait (10 August 1990 to 9 May 1991); Afghanistan (5 October 2002 to 15 June 2003 and 5 August 2004 to 19 January 2006 f. Awards and Decorations: BSM-2, ARCOM-2, JSAM-2, AAM-2, JMUA, MUC, ASU, NDSM-2, AFEM, SWASM-2, GWOTEM-2, GWOTSM, HSM, ASRM-3, ASR, OSR-5, UNM, MNFOM, KU-LIB-MDL (SA), KU-LIB-MDL (KU), SF-TAB, R-TAB, CIB, CAB, EIB (DD Form 214 make reference to a continuation sheet which was not found in the available record) g. Performance Ratings: 12 April 1998 to 1 August 2004 (seven reports), Best Qualified h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation (AR) 635-100 sets forth the basic authority for the separation of commissioned and warrant officers from the active Army. Chapter 3, Section XV establishes policy and procedures for involuntary relief from active duty. Paragraph 3-58(g) provides that an officer who is found guilty, or action is taken tantamount to a finding of guilty, in a Federal or State court may be immediately released from active duty by the Secretary of the Army, when the offense is punishable under the UCMJ with confinement of 1 year or more, or when the offense involves moral turpitude, regardless of the sentence received or the maximum punishment under any code. AR 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 FACT(S): The applicant through legal counsel requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant's available record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 600-8-24, Chapter 3, paragraph 3-13, by reason of In Lieu Of Trial By Court-Martial, with a characterization of service of Under Other Than Honorable Conditions. Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant would have been protected throughout the separation process. The applicant seeks relief contending, that his discharge is inequitable because he was denied a request for individual military counsel while pending court-martial charges. He contends he was detailed three different defense counsel over the course of his case, and his counsel never had the time or opportunity to independently investigate the charges. His discharge is equally inequitable where the military has lost all records of his court-martial charges and resignation, thus depriving him of the opportunity to rebut and contest the circumstance of his resignation. The only records in existence documenting his resignation is his DD Form 214. He believes the Army's failure to properly ensure that his charge sheet and resignation became part of his record to enable an appeal warrants an upgrade as there is no supporting documentation for his discharge or characterization of service The applicant's contentions were noted; however a determination on whether these contentions have merit cannot be made because the facts and circumstances leading to the discharge are unknown. Furthermore, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant's statements alone does not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. Based on the available record, the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 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. a. The applicant submitted the following additional document(s): Letter from BG(Ret) Sands-Pingot - 4 pages Character letters - 8 pages Post-service awards - 5 pages b. The applicant presented the following additional contention(s): Propriety for the same reasons. Post-service conduct. c. Witness(es) / Observer(s): None. 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 23 April 2018, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service to include combat service, a prior period of honorable service, board judgement, and post-service accomplishments. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 11. 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 Authority to: No Change e. Change SPD / RE Code 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 AR20170004995 4