IN THE CASE OF:.

		BOARD DATE: 24 May 2023

		DOCKET NUMBER: AR20220010548


APPLICANT REQUESTS:

*	upgrade of his under other than honorable conditions (UOTHC) discharge to an 
honorable discharge
*	the narrative reason for his separation be changed from "In lieu of Trial by Court-
Martial" to either "Secretarial Authority" or "For the Convenience of the 
Government"
*	his Reentry Eligibility (RE) code be changed from "NA" (Not Applicable) to "1"

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Counsel Brief
*	Self-authored affidavit
*	Email to counsel
*	DA Form 67-9 (Officer Evaluation Report (OER))
*	Phillips Law legal memorandum
*	Army Discharge Review Board (ADRB) Docket Number AR202100
*	Character reference letters (five)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
Code, Section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file.

2.  Counsel states, the applicant should be granted the requested relief based on three 
errors: (1) the underlying basis of his separation was procedurally defective at the time 
of his discharge; (2) the adverse action, to include the administrative discharge, was 
unfair at the time; and (3) the UOTHC characterization is inequitable and has served its 
purpose. The applicant's DD Form 149, indicates post-traumatic stress disorder (PTSD) 
and other mental health issues are related to his request.
     a.  Counsel contends there is procedural defect in the applicant's case and cites 
provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative 
Separations), Chapter 10.

     b.  Counsel further contends the applicant's trial defense counsel did not have proper 
time for the case and did not thoroughly investigate the charges and whether the proper 
course of action was to resign in lieu of court-martial. The applicant had never been 
involved in a criminal investigation and relied on his detailed counsel's advice.

3.  By affidavit, the applicant states that prior to his discharge, he was a Captain (CPT) 
serving as a company commander at Fort Carson, CO. He was pending court-martial 
due to an issue related to the "Cup and Flower" fund in his unit. His trial defense 
counsel did not give him proper counsel. He was forced to stay at a duty location 
without his family for nearly a year, without any formal action being taken on his case. 
He became frustrated and took the other than honorable discharge when it was offered. 

     a.  After being on hold for a year, he was told he could go home and be with his 
family if he accepted a discharge UOTHC and left the Army. Counsel assured him that it 
was only paperwork and that as soon as he left the Army, he could apply for an 
upgrade, and it would be granted. The uncertainty of his situation and being separated 
from his family for such a long time took a toll on both his family and him financially. He 
ultimately got divorced.

     b.  The substantive error is the fact that there was insufficient proof that the applicant 
ever committed any illegal acts while commissioned as a military officer. He has never 
been found guilty of any offenses and the charges remain unsubstantiated. He admits to 
making mistakes but did not act with a criminal intent.

     c.  He had a fine military career and had completed 10 years of honorable service at 
the time of his discharge. Since his discharge, the applicant has successfully raised four 
children and worked as a warehouse manager for Coca Cola, where he managed up to 
75 employees. The events that occurred are no longer relevant as the applicant has 
lived in an exemplary manner. There is no valid reason for leaving the UOTHC 
characterization in place.

4.  On 23 March 1992, the applicant enlisted into the U.S. Army Reserve for a period of 
8 years. He entered the Reserve Officers' Training Corps program as a cadet at Auburn 
University, Montgomery, AL.

5.  On 12 December 1995, he was appointed as a Reserve Commissioned Officer of the 
Army in the rank/grade of second lieutenant (2LT)/O-1. 

6.  He was appointed as a 2LT in the Regular Army on 17 May 1996 and ordered to 
active duty effective 3 March 1996. He was promoted to CPT/O-3 on 1 February 2000.

7.  The applicant's OER for the period of 11 October 2004 through 31 May 2005 shows 
he received unfavorable ratings from both his rater and senior rater and was relieved 
from his duties as a company commander.

     a.  The rater stated the applicant was relieved from command for mismanagement of 
unit funds. His behavior was irresponsible and breached the inherent trust and 
confidence that his subordinates and leaders had in him. His deliberate and 
premeditated actions were in direct violation of the ideals and morals expected of an 
officer in the U.S. Army. The rater indicated the applicant's performance was 
unsatisfactory and recommended that he not be promoted or retained in the Army.

     b.  The senior rater opined that the applicant had no potential for promotion. He 
stated he relieved the applicant of command as a result of unethical behavior. His 
persistent history of misuse of unit funds and co-mingling of unit and personal monies 
was in direct violation of the Army values and beyond every expectation of good order 
inherent in a leader and commander. His extremely poor decisions adversely affected 
the morale of his Soldiers and compromised the bond of trust commander develop with 
their Soldiers. He opined the applicant had no potential in the Army and recommended 
that he be processed for elimination from the service.

8.  The specific facts and circumstances pertaining to the applicant's separation are not 
present in his available record. However, a review of the Army Review Boards Agency 
(ARBA) database shows on 2 March 2006, a Department of the Army Ad Hoc Military 
Review Board reviewed the applicant's voluntary resignation in lieu of elimination based 
on violation of the Uniform Code of Military Justice. On 2 March 2006, the Deputy 
Assistant Secretary of the Army (Review Boards) accepted the applicant's resignation in 
lieu of elimination based on misconduct and directed that he be discharged with a 
service characterization of UOTHC.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he 
was discharged in the rank of CPT on 25 March 2006, under the provisions of Army 
Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-13, in lieu of trial 
by court-martial. He was credited with completion of 10 years and 17 days of net active 
service this period. His service was characterized as UOTHC. His SPD code is listed as 
DFS and his RE code is shown as "NA." He was awarded or authorized the following 
decorations, medals, and badges:

*	Army Commendation Medal (2nd Award)
*	Army Achievement Medal
*	National Defense Service Medal (2nd Award)
*	Global War on Terrorism Service Medal
*	Korea Defense Service Medal
*	Army Service Ribbon
*	Overseas Service Ribbon
*	Ranger Tab
*	Expert Infantryman Badge
*	Parachute Rigger Badge
*	Parachutist Badge
*	Air Assault Badge

10.  The applicant's record is void of evidence he was diagnosed with PTSD or any 
other behavioral health condition during his period of service.

11.  The applicant consulted with legal counsel and voluntarily tendered his resignation 
from the Army in writing, under the provisions of Chapter 3, Army Regulation 600-8-24, 
for the good of the service - in lieu of trial by court-martial. A characterization of UOTHC 
is authorized and normally considered appropriate.

12.  On 18 January 2018, the applicant petitioned the ADRB for an upgrade of the 
characterization of his discharge, a change to the narrative reason for his separation, 
and RE code. The basis of his argument was his contention that his discharge was in 
error due to three reasons: (1) procedural defect; (2) it was unjust at the time of his 
discharge; and (3) it had served its purpose. 

     a.  In the processing of this petition, the ADRB obtained a Department of the Army 
Criminal Investigations Division (DACID) Report of Investigation, dated 1 December 
2005, which reflects an investigation established probable cause to believe the 
applicant committed the offenses of larceny of government funds, wire fraud, and 
making and uttering worthless checks when he utilized a unit and Family Readiness 
Group bank account for personal expenditures for approximately $17,000.00 and 
committed the offense of false swearing when he provided sworn statements, which 
contained false information that he knew to be false. Copies of the DACID ROI were 
provided to the applicant and his counsel and they were afforded an opportunity to 
respond.

     b.  On 26 April 2020, the applicant's counsel responded by stating it was simply a 
summary of an investigation and the applicant continued to put forth the legal 
arguments brought in the legal brief submitted by counsel, dated December 2018. 
There was also a human element to this case that was discussed in an affidavit and 
email the applicant put before the ADRB. There was never any intention on the part of 
the applicant to commit fraud or larceny against the U.S. Government. The DACID ROI 
is in error because it has a finding of no contest for all disposition, except for False 
Swearing. There was never any nonjudicial punishment in this case and the resignation 
precluded findings. The entire report is in error. The applicant did not deny making an 
error in judgment in his handling of funds. He did deny ever forming the intent to commit 
a crime.

     c.  The ADRB voted to deny the applicant's request and determined he was properly 
and equitably discharged. Accordingly, his request was denied.

13. On 19 November 2020, the applicant petitioned the ADRB to reconsider his 
previous request and desired to appear before the ADRB in person.

     a.  In a telephonic personal appearance hearing conducted on 6 December 2021, 
and by a 5-0 vote, the ADRB denied the applicant's request.

     b.  On 8 February 2022, he was informed that the ADRB determined he was properly 
and equitably discharged. Accordingly, his request was denied.

14.  The applicant provides the following additional evidence in support of his petition:

     a.  An email message the applicant sent to his counsel on 17 April 2020 shows the 
applicant explained that as he was preparing to change command and transition the unit 
to the new commander. There were several people who had paid for unit events but had 
not been reimbursed. Some of these individuals were double paid which put the account 
into a negative balance and the bank contacted the command for resolution. Once the 
command was involved, it was noticed that he moved money between his personal 
account and the unit account throughout his time as the commander, which was true. 
Throughout his separation ordeal, he was asked to plead guilty and accept many 
different forms of punishment, but he refused and opted to face court-martial. When he 
was informed it could take an additional six months to a year to face court-martial, he 
elected to simply resign his commission in lieu of court-martial. He would move on with 
his life and apply for an upgrade once his administrative action was completed.

     b.  The applicant's petitions to the ADRB included five letters of support rendered by 
former colleagues who provided very favorable comments regarding his character, duty 
performance, and love of family. They each opined that he has learned from his past 
mistakes and is worthy of consideration for an upgrade of his service characterization.

15.  In reaching its determination, the Board can consider the applicant’s petition, 
arguments and assertions, and service record in accordance with the published equity, 
injustice, or clemency guidance.




16.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR requesting: 1) an upgrade of his under 
other than honorable conditions (UOTHC) discharge to an honorable discharge; 2) the 
narrative reason for his separation be changed; 3) and an upgrade of the RE Code.  He 
contends he had PTSD and other mental health conditions which mitigated his 
misconduct.
    b.  The specific facts and circumstances of the case can be found in the ABCMR 
Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) the 
applicant was appointed as a 2LT in the Regular Army on 17 May 1996. He was 
promoted to CPT on 1 February 2000; 2) The applicant's OER for the period of 11 
October 2004 -31 May 2005 shows he received unfavorable ratings from both his rater 
and senior rater and was relieved from his duties as a company commander for 
mismanagement of unit funds; 3) The specific facts and circumstances pertaining to the 
applicant's separation are not present in his available record. However, on 2 March 
2006, the Deputy Assistant Secretary of the Army (Review Boards) accepted the 
applicant's resignation in lieu of elimination based on misconduct and directed that he 
be discharged with a service characterization of UOTHC; 4) The applicant was 
discharged on 25 March 2006, Chapter 3-13, in lieu of trial by court-martial. His service 
was characterized as UOTHC. His SPD code is listed as DFS and his RE code is 
shown as "NA.”
    c.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant’s military service records. The Armed Forces Health 
Longitudinal Technology Application (AHLTA) and the VA’s Joint Legacy Viewer (JLV) 
were also examined. No additional medical documentation was provided for review
    d.  There was no available evidence the applicant ever endorsed symptoms of a 
mental health condition including PTSD while on active service.  A review of JLV was 
void of any behavioral health documentation, and the applicant receives no service-
connected disability.
    e.  Based on the available information, it is the opinion of the Agency BH Advisor that 
there is insufficient evidence to support the applicant had condition or experience that 
mitigated his misconduct. 
Kurta Questions
1.	Did the applicant have a condition or experience that may excuse or mitigate the 
discharge? Yes, the applicant contends he was experiencing mental health 
conditions including PTSD which mitigate his misconduct.

2.	Did the condition exist or experience occur during military service?  Yes, the 
applicant contends he was experiencing mental health conditions including PTSD 
while on active service.

3.	Does the condition or experience actually excuse or mitigate the discharge? No, 
there is insufficient evidence beyond self-report that the applicant was 
experiencing symptoms of a mental health condition including PTSD while on 
active service. In addition, there is no nexus between his reported mental health 
conditions including PTSD and larceny of government funds, wire fraud, writing 
bad checks, and making false statements. These behaviors are not a normal 
sequala to his reported mental health conditions including PTSD. However, the 
applicant contends he was experiencing mental health conditions that mitigated 
his misconduct, and per Liberal Consideration his contention is sufficient for the 
board’s consideration.


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that partial relief was warranted. The Board 
carefully considered through counsel the applicant's record of service, documents 
submitted in support of the petition and executed a comprehensive and standard review 
based on law, policy and regulation, and published Department of Defense guidance for 
liberal and clemency determinations requests for upgrade of his characterization of 
service. One potential outcome was to deny relief based on the misconduct and the 
medical review. The Board considered the advising official finding insufficient evidence 
beyond self-report that the applicant was experiencing symptoms of a mental health 
condition including PTSD while on active service. In addition, there is no nexus between 
his reported mental health conditions including PTSD and larceny of government funds, 
wire fraud, writing bad checks, and making false statements. These behaviors are not a 
normal sequala to his reported mental health conditions including PTSD. Evidence of 
record shows, at the time of separation, documentation supports the narrative reason 
for separation properly identified on the DD Form 214.  As such, the Board determined 
under liberal consideration changes to the applicant’s narrative reason are not 
warranted.

2.  However, upon review through counsel of the applicant’s petition, available military 
records and medical review, the Board under liberal consideration recognized the 
applicants 10 years of honorable service as demonstrated by military records, personal 
affidavit, and character reference and supporting letters. The Board found the 
applicant’s post service achievements and extraordinary letters of support that attest to 
the totality of his honorable conduct and character on active duty and since separation, 
that mitigate the characterization of service the applicant received during discharge. The 
Board determined based on the evidence the applicant was never found guilty of any 
offenses and the charges remain unsubstantiated. The Board agreed the applicant’s 
lapse in judgement should not dictate the character of the applicant who up until this 
point had a stellar career and was well respected based on his letters of support. Based 
on the preponderance of evidence provided by the applicant’s counsel that 
demonstrated an error occurred, the Board granted partial relief with an upgrade to 
under honorable (general) conditions. 

3.  Furthermore, per Army Regulation 635-8 (Separation Processing and Documents), 
paragraph 5-6 (Rules for completing the DD Form 214), paragraph 5.6z.aa., stipulates 
that for block 27, reentry code, AR 601–210 determines reentry eligibility and provides 
regulatory guidance on reentry codes, but that the codes are not applicable to officer 
discharges. As such, correction to the applicant’s RE code is not warranted. 


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	X	DENY APPLICATION

?
BOARD DETERMINATION/RECOMMENDATION:

1.	The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief. As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by amending 
his DD Form 214 to show his characterization of service as under honorable (general) 
conditions.

2.	The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief. As a result, the Board recommends denial of so much of 
the application that pertains to upgrade of his under other than honorable conditions 
(UOTHC) discharge to an honorable discharge and correction of the narrative reason 
for his separation be changed from "In lieu of Trial by Court-Martial" to either 
"Secretarial Authority" or "For the Convenience of the Government. In addition, his 
Reentry Eligibility (RE) code be changed from "NA" (Not Applicable) to "1. 


	
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.


REFERENCES:

1.  Title 10, USC, Section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or injustice. 
This provision of law also allows the ABCMR to excuse an applicant's failure to timely 
file within the three-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  Title 10, USC, Section 1556, provides the Secretary of the Army shall ensure that an 
applicant seeking corrective action by ARBA is provided a copy of all correspondence 
and communications, including summaries of verbal communications, with any agencies 
or persons external to agency or board, or a member of the staff of the agency or 
Board, that directly pertains to or has material effect on the applicant's case, except as 
authorized by statute.

3.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR. 
The regulation provides that the ABCMR begins its consideration of each case with the 
presumption of administrative regularity. The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence. It is not an investigative body. 
The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a 
hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing 
whenever justice requires.

4.  Army Regulation 600-8-24, in effect at the time prescribed policy and procedure 
governing transfer and discharge of Army officer personnel.

     a.  Paragraph 1-16 states an officer pending court-martial charges or investigation 
with a review toward court-martial will not be separated without Headquarters, 
Department of the Army approval.

     b.  Paragraph 1-22(a) states an officer will normally receive an honorable 
characterization of service when the quality of the officer’s service has met the 
standards of acceptable conduct and performance of duty, or the final revocation of a 
security clearance for reasons that do not involve acts of misconduct, for an officer.  

     c.  Paragraph 1-22(b) states an officer will normally receive an under honorable 
conditions characterization of service when the officer’s military record is satisfactory 
but not sufficiently meritorious to warrant an honorable discharge.

     d.  Chapter 3 (Resignations) of the regulation prescribes the tasks, rules, and steps 
for processing voluntary resignations). Paragraph 3-13 (Rules for processing 
resignation for the good of the service in lieu of general court-martial) states an officer 
may submit a resignation for the good of the service in lieu of general court-martial if 
court-martial charges have been preferred against the officer with a view toward trial by 
general court-martial. An officer separated under this paragraph normally receives 
characterization of service of under other than honorable conditions. An officer who 
resigns for the good of the service (regardless of the character of service received) is 
barred from rights under laws administrated by the Veterans Affairs based on the period 
of service from which the officer resigned.

     e.  Chapter 4 (Eliminations) of the regulation prescribes the process for elimination of 
an officer in the Army. Paragraph 4-1 (Overview) states an officer is permitted to serve 
in the Army because of the special trust and confidence the President and the nation 
have placed in the officer’s patriotism, valor, fidelity, and competence. An officer is 
expected to display responsibility commensurate to this special trust and confidence 
and to act with the highest integrity at all times. However, an officer who will not or 
cannot maintain those standards will be separated.

5.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) 
implements the specific authorities and reasons for separating Soldiers from active duty. 
It also prescribes when to enter SPD codes on the DD Form 214. 

     a.  Paragraph 2-1 provides that SPD codes are three-character alphabetic 
combinations that identify reasons for, and types of, separation from active duty. The 
primary purpose of SPD codes is to provide statistical accounting of reasons for 
separation. They are intended exclusively for the internal use of Department of Defense 
and the Military Services to assist in the collection and analysis of separation data. This 
analysis may, in turn, influence changes in separation policy. SPD codes are not 
intended to stigmatize an individual in any manner.

     b.  Paragraph 2-4 provides that RE codes are determined by the separation authority 
and reason for separation, not the character of separation. RE codes are placed on 
military discharge documents and determine whether or not one may reenlist or enlist in 
a Military Service at a later time. RE codes should be used in relation to the reason for 
separation for enlisted personnel in accordance with Army Regulation 601-210 (Regular 
Army and Reserve Components Enlistment Program). Officers do not have RE codes 
and reentry/future appointments are determined by Human Resources Command 
during the reappointment process.

     c.  Paragraph 2-6 provides the SPDs and narrative reasons for separation that are 
applicable to officer personnel. It shows, in part, SPD DFS is the appropriate code to 
assign to an officer who is separated due to resignation in lieu of trial by court-martial. 
KFF is the appropriate SPD to assign to officers who are voluntarily discharged under 
Secretarial authority. 

6.  On 3?September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRB) and Service Boards for Correction of Military/Naval Records 
(BCM/NR) to carefully consider the revised PTSD criteria, detailed medical 
considerations and mitigating factors when taking action on applications from former 
service members administratively discharged UOTHC and who have been diagnosed 
with PTSD by a competent mental health professional representing a civilian healthcare 
provider in order to determine if it would be appropriate to upgrade the characterization 
of the applicant's service.

7.  On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs 
and BCM/NRs when considering requests by Veterans for modification of their 
discharges due in whole or in part to: mental health conditions, including PTSD; 
Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal 
consideration to veterans petitioning for discharge relief when the application for relief is 
based in whole or in part to those conditions or experiences. The guidance further 
describes evidence sources and criteria and requires Boards to consider the conditions 
or experiences presented in evidence as potential mitigation for misconduct that led to 
the discharge.

8.  On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency 
determinations. Clemency generally refers to relief specifically granted from a criminal 
sentence. BCM/NRs may grant clemency regardless of the type of court-martial. 
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice.

   a.  This guidance does not mandate relief, but rather provides standards and 
principles to guide Boards in application of their equitable relief authority. In determining 
whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs 
shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy 
changes, relative severity of misconduct, mental and behavioral health conditions, 
official governmental acknowledgement that a relevant error or injustice was committed, 
and uniformity of punishment.

     b.  Changes to the narrative reason for discharge and/or an upgraded character of 
service granted solely on equity, injustice, or clemency grounds normally should not 
result in separation pay, retroactive promotions, and payment of past medical expenses 
or similar benefits that might have been received if the original discharge had been for 
the revised reason or had the upgraded service characterization.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220010548


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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