1. Applicant's Name: a. Application Date: 21 October 2016 b. Date Received: 27 October 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 effect, that he honorably served his country during his 10 years tenure in the military. He contends in those 10 years he has been stationed in Korea, West Point, NY, Fort Leonard Wood, Mo, Fort Benning, GA, Fort Sill, OK, Guantanamo Bay, Cuba, and Afghanistan. In 2010, upon completion of Captain Career Course at Fort Leonard Wood, Mo, he received unaccompanied order to go to Guantanamo Bay, Cuba to command a company for 18 months then to proceed to Afghanistan for another 12 months. Before he went on deployment for 30 months, the military moved his family from Fort Leonard Wood, Mo to , NY which was where his wife wanted to move. Five months into his tour in Guantanamo Bay, his wife decided to move to TX to be close to her sick mother, so she move at her own expense. After his wife moved to he continued to collect BAH for NY for the rest of his deployment. He contends he did not go to finance to change the BAH from NY to TX because he did not know that he had too. When he got back from Afghanistan, he told his commander about it but he wanted to charge him for fraud. He went to JAG seeking legal advice; JAG advised him to resign his commission and initiate a debt to repay the overpayment. As a result, he resigned his commission and initiated the overpayment debt in 2013. After he resigned his commission he learned from finance that "If the military moves the family of a Soldier from a location while unaccompanied tour, then the family decided to move to another location at their own expense. Therefore, the Soldier can continue to collect BAH from the old location." When he learned about the regulations, he contacted a law firm in Washington, DC to fight his case so he could go back into the military. The lawyer asked him for $13,000 to take the case; however, due to the fact that he did not have any money, he could not do anything. So he believes he deserves to be discharged honorably because he did not do anything wrong according to JTR Chapter 10 Housing Allowance Part E Paragraph 10 and Entitlements nor did he intentional defraud the Government. In a records review conducted at Arlington, VA on 4 May 2018, 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, Chapter 3-13 / DFS / NA / Under Other Than Honorable Conditions b. Date of Discharge: 4 January 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 August 2012 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which indicates on 22 August 2012, the applicant was charged with the following: Charge I; Violation of the UCMJ, Article 107 Specification 1: With the intent to deceive, on 11 July 2011 signed an official record, to wit: DD Form 2560 (Advance Pay Authorization), dated 11 July 2011, which record was false in the it claimed the advance payment was to relocated dependents to an address in New York where his dependent did not relocate, and was then known by the applicant to be false. Specification 2: With the intent to deceive, on 10 May 2010, signed an official record, to wit: DA Form 4187 (Personnel Action), dated 10 May 2010, which record was false in that it claimed an address in New York where his dependents did not reside, and was then known by the applicant to be so false. Specification3: With the intent to deceive, on 5 May 2010, signed an official record, to wit: DD Form 1351-2 (Travel Voucher), dated 5 May 2010, which record was false in that it claimed travel for the applicant to New York where he did not travel, and was then known by him to be false. Specification 4: With intent to deceive, on 5 May 2010, signed an official record, to wit: DD Form 1351-2 (Travel Voucher), dated 5 May 2010, which record was false in that it claimed travel for the applicant's dependents to an address in New York where the applicant's dependents did not travel, and was then known by the applicant to be false. Specification 5: With intent to deceive, on 3 May 2010, signed an official record, to wit: an affidavit, which record was false in that it claimed that the applicant had an agreement to rent a property in New York, and was then known by the applicant to be false. Specification 6: With intent to deceive, on 3 May 2010, signed an official record, to wit: DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters), which record was false in that it claimed an address in New York where the applicant dependents did not reside, and was known by the applicant to be false. Specification 7: With intent to deceive, on 3 May 2010, signed an official record, to wit: DD Form 1561 (Statement to Substantiate Payment of Family Separation Allowance), which record was false in that it claimed an address in New York where the applicant's dependents did not reside, and was known by the applicant to be false. Specification 8: With intent to deceive, on 29 April 2010, signed an official record, to wit: DITY Checklist and Certification of Expenses, which was false in that it claimed the advance payment was to relocate dependent to an address in New York where the applicant's dependents did not relocated, and was known by the applicant to be false. Specification 9: With intent to deceive, on 1 March 2010, signed an official record, to wit: DD Form 2278 (Application for Do it Yourself Move and Counseling Checklist), which record was false in that it claimed the advance payment was to relocate dependents to an address in New York where the applicant's dependents did not relocated, and was then known by the applicant to be false. Charge II; Violation of the UCMJ, Article 121. Specification 1: Wrongfully appropriated military funds, of a value of approximately $5,256, the property of the United States on 11 July 2011. Specification 2: Stealing Cost of Living Allowance, of a value of approximately $10, 242 the property of the United States between 1 May 2010 and 31 December 2011. Specification 3: Stealing Basic Housing Allowance, of a value of approximately $64,854, the property of the United States between 1 May 2010 and 31 December 2011. Charge III: Violation of the UCMJ, Article 132 Specification: Present for approval and payment a claim against the United States in the amount of approximately $13,833, which claim was false and fraudulent in the amount of approximately $13, 833, in that it was based on a location where the applicant's dependent did not reside, and was then known by the applicant to be false and fraudulent on 3 May 2010. Charge IV: Violation of the UCMJ, Article 133. Specification: On divers occasion knowingly presented for approval and payment claims against the United States for approval of documents that allowed the applicant to collect payment that he was not entitled to, and produced and made false statements to government officials about his family residency, that under the circumstance constituted conduct unbecoming an officer and gentleman between 1 March 2010 and 31 December 2011. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 20 September 2012 On 24 September 2012, the applicant voluntarily tender his resignation from the Army for the Good of the Service under the provision of AR 600-8-24, chapter 3 paragraph 3-13. He did not desire to appear before a court-martial or board of officers. (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: The Department of the Army Ad Hoc Review Bard reviewed the applicant's Resignation for the Good of the Service in Lieu of General Court-Martial. On 18 December 2012, The Deputy Assistant Secretary (Army Review Boards) accepted his resignation and he was discharge from the United States Army with an Under Other Than Honorable Conditions characterization of service. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 May 2006 / Indefinite b. Age at Enlistment / Education / GT Score: 34 / MA Degree / NA c. Highest Grade Achieved / MOS / Total Service: O-3 / 31A Military Police / 9 years, 11 months, 14 days d. Prior Service / Characterizations: RA, 27 September 2002 to 24 May 2006 / HD e. Overseas Service / Combat Service: Korea, Cuba, SWA / Cuba (5 November 2006 to 4 December 2007; 30 April 2010 to 30 July 2011; and 8 March 2012 to 30 June 2012) and Afghanistan (2 September 2011 to 7 March 2012) f. Awards and Decorations: JSCM, MSM, ARCOM-3, JSAM, AAM-3, JMUA-2, AGCM, ACM-CS, NDSM, GWOTEM, GWOTSM, KDSM, ASR, OSR-3, NATO MDL g. Performance Ratings: 8 November 2006 to 10 March 2012 (eight reports), Outstanding Performance, Must Promoted (Best Qualified) h. Disciplinary Action(s) / Evidentiary Record: US Naval Criminal Investigative Service Reports, dated between 4 January 2012 and 27 July 2012, which shows the applicant was the subject of investigation for fraud against the United States, larceny, and making false official statements. Charge sheet as described in previous paragraph 3c i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; PCS Orders; several officer evaluation report's; travel vouchers; family separation allowance documents; personnel action document; document for starting variable housing allowance; extract from JTR Chapter 10 Housing Allowance Part E Paragraph 10 and Entitlements; lease agreement; and officer record brief. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 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 FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of several 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. 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 several acts of significant achievement and valor; however, it appears his record did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge. The applicant seeks relief contending, that he honorably served his country during his 10 years tenure in the military which included service in Korea, West Point, NY, Fort Leonard Wood, Fort Benning, Fort Sill, Guantanamo Bay, Cuba, and Afghanistan. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered and the applicant is to be commended on his accomplishments. The applicant contends before he went on deployment for 30 months, the military moved his family from Fort Leonard Wood, Mo to NY which was where his wife wanted to move. Five months into his tour in Guantanamo Bay, his wife decided to move to TX to be close to her sick mother, so she move at her own expenses. After his wife moved to , he continued to collect BAH for NY for the rest of his deployment. He contends he did not go to finance to change the BAH from NY to TX because he did not know that he had too. When he go back from Afghanistan, he told his commander about it but he wanted to charge him for fraud. He went to JAG seeking legal advice; JAG advised his to resign his commission and initiate a debt to repay the overpayment. As a result, he resigned his commission and initiated the overpayment debt in 2013. After he resigned his commission he learned from finance that "If the military moves the family of a Soldier from a location while unaccompanied tour, then the family decided to move to another location at their own expense. Therefore, the Soldier can continue to collect BAH from the old location." When he learned about the regulations, he contacted a law firm in Washington, DC to fight his case so he could go back into the military. The lawyer asked his for $13,000 to take the case; however, due to the fact that he did not have any money, he could not do anything. So he believes he deserves to be discharged honorably because he did not do anything wrong according to JTR Chapter 10 Housing Allowance Part E Paragraph 10 and Entitlements nor did he intentional defraud the Government. The applicant's contentions were noted; however, evidence in the record shows the applicant on divers occasion knowingly presented for approval and payment claims against the United States for approval of documents that allowed the applicant to collect payment that he was not entitled to, and produced and made false statements to government officials about his family residency, that under the circumstance constituted conduct unbecoming an officer and gentleman between 1 March 2010 and 31 December 2011. The applicant consulted with legal counsel prior to submitting his letter of resignation; if there were any concerns he needed to address he could have done so at the time of his legal consultation. The applicant voluntarily requested resignation in lieu of trial by general court-martial under the provisions of Chapter 3, AR 600-8-24. The appropriated authority approved the applicant's request with issuance of an under other than honorable conditions characterization of service. The applicant did not desire to appear before a court-martial or a board of officers. It should be noted and officer will normally receive an under other than honorable conditions discharge when the resign for the good of the service, are dropped from the rolls of the Army, or involuntarily separated due to misconduct. 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 4 May 2018, 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 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 AR20170001722 1