1. Applicant's Name: a. Application Date: 15 March 2017 b. Date Received: 1 May 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation. The applicant through counsel seeks relief contending, in effect, post-service conduct has been exemplary and is an accomplished professional and valued member of the community. The applicant's service was overwhelmingly exemplary and an under other than honorable conditions characterization was excessive given the many years of honorable service. The applicant was largely following the advice of a more experienced co-worker concerning the conduct of TDYs. The applicant believed that the actions were consistent with the standard procedures of the office and now realizes that trust was misplaced. The applicant's under other than honorable conditions characterization is unfairly stigmatizing and the negative information in the official file will have a profound effect on the applicant's ability to successfully seek retirement from the Reserve Component. The applicant received a recommendation from a General Officer, stating that applicant should have received a higher discharge, which was not forwarded with the resignation. In a personal appearance hearing conducted at Arlington, VA on 30 July 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, Paragraph 3-13 / DFS / NA / Under Other Than Honorable Conditions b. Date of Discharge: 12 February 2007 c. Separation Facts: No (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: On 2 August 2006, the applicant consulted with legal counsel and offered to plead guilty. The Court-Martial Convening Authority accepted the applicant's offer to plead guilty and dismissed court-martial charges and to dispose of this case with a General Officer Article 15. (5) Administrative Separation Board/BOI: The applicant agreed to waive his right to a BOI based on any charges and specifications that are the subject of this agreement. (6) Separation Decision Date / Characterization: The Department of the Army Ad Hoc Review Board has reviewed the Resignation in Lieu of Elimination based on misconduct, moral or professional dereliction, tendered by the applicant. On 23 January 2007, the Assistant Secretary of the Army (Manpower and Reserve Affairs) accepted the resignation and directed the applicant's discharge from the United States Army with an Under Other Than Honorable Conditions characterization of service. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 April 1998 / 3 years / OAD / b. Age at Enlistment / Education / GT Score: 33 years / Master's Degree / NA c. Highest Grade Achieved / MOS / Total Service: O-5 / 21D, Facilities / Contract / 21A, Engineer / General / 23 years, 10 months, 28 days d. Prior Service / Characterizations: USAR, 15 March 1983 to 8 May 1983 / NA ADT, 9 May 1983 to 25 August 1983 / HD USAR, 26 August 1983 to 23 July 1985 / NA Appointed 2LT / USAR 24 July 1985 / NA USAR, 25 July 1985 to 29 May 1987 / NA AD, 30 May 1987 to 8 March 1998 / HD USARCG, 9 May 1998 to 11 April 1998 / NA (Concurrent Service) e. Overseas Service / Combat Service: Germany / Korea / Hawaii / None f. Awards and Decorations: MSM-4, JSCM, ARCOM-2, AAM-2, ARCAM, NDSM-2, GWOTSM, KDSM, HSM-3, ASR, OSR-3, ARCOTR g. Performance Ratings: 12 April 1998 to 8 July 2005, Best Qualified h. Disciplinary Action(s) / Evidentiary Record: GO Article 15, dated 19 September 2006, without authority, go from his appointed place of duty, Operation Bailey Caraboa IX, located in the country of Cambodia x2 (29 June 2004 and 28 October 2004); without authority, absented himself from his unit x2 (3 December 2004 until 19 December 2004) and (28 March 2005 and 17 April 2005); with intent to deceive, make to COL D.S.S. B.-G., an official statement, that the applicant presented to COL D.S.S. B.-G., a false and fraudulent DD Form 1610 for TDY travel and stated to COL D.S.S. B.-G., that his previous command, the 412th Engineering Command, would pay all costs for the authorized TDY to Honolulu, Hawaii and Cambodia on Travel Order APEN 03-004, which statement was totally false in that the applicant was not authorized by his former command to travel TDY to Honolulu, Hawaii and Cambodia, that the requesting and authorizing official's signatures on the DD Form 1610 were forged and that the fund cites for the travel were closed; and was then known by the applicant to be so false (21 February 2005); steal U.S. Currency, military property x5, of a value of about $990 $1,774.32, $1,283, $3,104.86 and $3,575.07, the property of the US Government (21 June 2004, 15 July 2004, 30 August 2004, 3 November 2004 and 4 January 2005); with intent to defraud, falsely make the signatures of MAJ R.C.H., as an endorsement to a certain writing, a DD Form 1610 for travel order number APEN 05-001, a writing which would, if genuine, apparently operate to the legal harm of another, in that the DD Form 1610 authorized the applicant's government funded TDY travel x2 (17 May 2004 and 24 May 2004); with intent to defraud, utter certain writings, that is lodging receipts, in the following words and figures x5, L.K.H., receipt # 0128, in the amount of $990, Leng Heng Hotel, receipt #1252, in the amount of $1,165, Ta Prohm Hotel, receipt #368, in the amount of $1,283 , Ta Prohm Hotel, 1,050 and L.K.H. receipt #243 in the amount of $1,120, writings which would, if genuine, apparently operate to the legal harm of another, which writings were, as the applicant, then well knew, falsely made, and which writings were used to the legal harm of the US Government, in that they were submitted for monetary reimbursement (15 June 2004 ,9 July 2004, 22 August 2004 and 2 November 2004); with intent to defraud, falsely make the signature of MAJ X, as an endorsement to a certain writing, a DD Form 1351-2 for travel order number APEN 08-01, a writing which would, if genuine, apparently operate to the legal harm of another, in that the DD Form 1351-2 authorized payment for the applicant's TDY travel (22 August 2004); with intent to defraud, falsely make the signature of MAJ X., as an endorsement to a certain writing, a DD Form 1610 for travel order number APEN 10-01, a writing which would, if genuine, apparently operate to the legal harm of another, in that the DD Form 1610 authorized the applicant's government funded TDY travel (6 October 2004); with intent to defraud, falsely make the signature of SFC X. and Mr. X, as an endorsements to a certain writing, a DD Form 1610 for travel order number APEN 10-04, a writing which would, if genuine, apparently operate to the legal harm of another, in that the DD Form 1610 authorized the applicant's government funded TDY travel (8 October 2004); with intent to defraud, falsely make the signature of MAJ X., as an endorsement to a certain writing, a DD Form 1351-2 for travel order number APEN 10-04, a writing which would, if genuine, apparently operate to the legal harm of another, in that the DD Form 1351-2 authorized payment for the applicant's TDY travel (19 December 2004); with intent to defraud, falsely make the signatures of MAJ X and Mr. X, as an endorsement to a certain writing, a DD Form 1610 for travel order number APEN 03-004, a writing which would, if genuine, apparently operate to the legal harm of another, in that the DD Form 1610 authorized the applicant's government funded TDY travel (20 February 2005); with intent to defraud, utter certain writings, that is a lodging receipt, in the following words and figures, Receipt Description Receipt # Amount Date on Receipt; Welcome Inn Hotel 361 $550 7 November 2004 Lee Kim Hua 243 $1,120 22 October 2004 G.K. Travel 0 0512 $657.89 28 November 2004 L300 Tours & Transport Not Listed $610.91 7 December 2004 writings which would, if genuine, apparently operate to the legal harm of another, which writings were, as the applicant, then well knew, falsely made, and which writings were used to the legal harm of the United States Government, in that they were submitted for monetary reimbursement. wrongfully engage in the following conduct between (14 May 2004 and 19 April 2005); on divers occasions, on or near the island of Oahu, Hawaii, presented for approval false travel claims; stole U.S. Currency, military property, of a value exceeding $500.00, the property of the US Government; uttered false and fraudulent receipts which were presented to the US Government for approval and payment; forged signatures on DD Form 1610's which were presented to the US Government for unauthorized travel orders; forged signatures on DD Form 1351-2's which were presented to the United States Government for approval and payment; on divers occasions, absented himself without authority, from his unit, Headquarters and Headquarters Company, US Army Pacific; conspired with MAJ X to steal U.S. Currency, military property, of a value exceeding $500 the property of the US Government; on divers occasions, wore unauthorized rank and that under the circumstances, the conduct of applicant was unbecoming an officer and gentleman; wrongfully and without authority wear upon his uniform the insignia of a grade of a Lieutenant Colonel between (24 January 2005 and 11 February 2005); the following punishment was imposed, forfeiture of $2,600 pay for two months. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); counsel's letter; three DD Forms 214; applicant's resume (three pages); three letters of recommendation, and divorce decree. 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 one year or more, or when the offense involves moral turpitude, regardless of the sentence received or the maximum punishment under any code. 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 discharge 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. 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 "DFS" as the appropriate code to assign officer Soldiers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 3-13, in lieu of trial by court-martial. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation. 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 complete 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. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process. The DD Form 214 indicates the applicant was discharged under the provisions of AR 600-8-24, 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, the presumption of government regularity prevails as all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the DD Form 214 shows a Separation Code of DFS (i.e., lieu of trial by court-martial) with a reentry eligibility (RE) code of NA. The applicant requests a change to the narrative reason for separation. 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 "DFS" as the appropriate code to assign officer Soldiers who are discharged under the provisions of Army Regulation 600-8-24, paragraph 3-13, in lieu of trial by court-martial. The regulation further stipulates that no deviation is authorized. The applicant seeks relief contending, his post-service conduct has been exemplary; and he is an accomplished professional and valued member of his community. The applicant's post- service accomplishments have been noted as outlined in the documents with the application. The applicant is to be commended for his efforts. However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. The applicant further contends, his service was overwhelmingly exemplary; and an under other than honorable conditions characterization was excessive given his many years of honorable service. The available 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 applicant also contends, he was largely following the advice of a more experienced co- worker concerning the conduct of his TDYs; and he believed that his actions were consistent with the standard procedures of his office and now he realizes now that his trust was misplaced. The applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he believed that his actions were consistent with the standard procedures of his office. The applicant additionally contends, his under other than honorable conditions characterization is unfairly stigmatizing, and the negative information in his official file will have a profound effect on his ability to successfully seek retirement from the Reserve Component. The record contains a letter notifying the applicant he had completed the required years of qualifying reserve service and was eligible for retired pay on application at age 60 in accordance with Title 10, U.S. Code, Chapter 1223. His eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted directly from fraud or misrepresentation on his part. Lastly, the applicant contends, he received a recommendation from a General Officer, stating that applicant should have received a higher discharge, which was not forwarded with his resignation. The service record contains no evidence that a General Officer stated the applicant should have received a higher discharge and the applicant did not submit any evidence to support this contention. The third party statements provided with the application speak highly of the applicant. 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. 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): None b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 30 July 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. 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 AR20170007559 7