1. Applicant's Name: a. Application Date: 18 December 2017 b. Date Received: 21 December 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, his discharge was inequitable because it was based on one isolated incident in 30 years of faithful meritorious service with no other adverse action. He requests the upgrade of his discharge for the purpose of obtaining better employment and maintaining a security clearance. He is unable to move forward in life with the current characterization of service. He states, the illegality [sic] and the impropriety [sic] was not followed before he was discharged. He was unlawfully ordered to remove all of his skill badges and awards, which was done without a federal court order. According to the unit SJA, his documents from over 40 years ago looked "ingenuous, suspect," and "edited", but merely looking at the documents and coming to an opinion that they "don't look right" was not sufficient to allege that he committed fraud. None of his documents were examined by a Forensic Document Expert and no comparison documents were used by JAG to prove the documents were unofficial. The fact that the school houses did not have records of him attending, 40 years ago, does not mean that he did not attend. According to Dr. C's email, "Army training systems are not designed to maintain records for more than 20 years." The gross negligence should have deemed this investigation as legally sufficient. The SJA further violated a conflict of interest by helping the 15-6 investigating officer with his recommendation and preparing it for submission. It was a conflict of interest for the SJA to serve as the 15-6 legal advisor, yet he did during the beginning of the investigation. The investigation legally illegitimate for this reason and was legally insufficient because it was not complete. According to the unit 15-6 investigating officer, in a telephone interview with his attorney, the investigating officer and the unit SJA divided up the witnesses that the applicant provided them, to show that the applicant's insignia was authorized. The 15-6 investigating officer, neither called a single witness nor took down a single statement from any of them. This was gross negligence from the Office of the Staff Judge Advocate (OSJA) and they should have never deemed this investigation as legally sufficient. Further, this was a conflict of interest. He states, this all occurred during the initial 15-6 investigation in the Army Reserves. At that point, it had been two years since he had received the original counseling statement, which he was ordered to remove all skill badges and awards. He was ordered to active duty on 28 November 2016. The unlawful command influence was so prevalent that the JAG Prosecutor was reading from his laptop on what the command demanded during the Article 32 hearing. On 26 February 2017, his Army Reserve command rescinded the initial order to remove all skill badges and awards, which allowed him to wear them. Afterwards, he was given another order by the active duty command to not wear the skill badges and awards, regardless of the rescinded order by his Army Reserve command. The applicant's attorney demanded to know under what authority was the lawful order given? The active duty command could not give him the authority. This led to the question of why he received a GOMOR and Chapter 10 discharge, if the command rescinded the order to remove all skill badges and awards in the first place. He states, new material evidence of a rescinded order appeared on 26 February 2017. Immediately after he filed an IG and EO complaint with his command. The applicant received a letter from higher command that reflected he would not receive reprisal or retaliation, but he was never told that all along his command was obtaining approval from HQDA to order him on active duty to pursue further UCMJ actions. As a Troop Program Unit (TPU) Reservist Soldier, he was not permitted to receive free legal assistance, so he hired a civilian attorney from the beginning of the 15-6 investigation, which cost him a total of $12,000. After two years, the applicant and his wife, decided to find another attorney that had their interests in mind. They could no longer afford funding an attorney, which would have cost them an additional $15,000, so the decision was made to accept a Chapter 10, General Discharge, Under Honorable Conditions, but the discharge was immediately disapproved without any consideration. On 14 October 2012, he received a counseling statement from his CSM, stating that he was satisfied that the applicant had taken genuine and effective steps to correct any discrepancies that appeared in his record, primarily due to the span of time that existed from his initial enlistment and service in various components of the Army. Since he joined the Reserves, he never missed a Battle Assembly or Annual Training. He provides letters from his federal supervisors, former/retired Soldiers, and close friend for the Board's review. He has completed the DoD Financial Management School and he has returned to civilian life and attests to his honesty, integrity, work ethic, commitment to his family and commitment to his community. His step daughter has completed her Master's degree and she is now pursuing a Doctorate degree. He states, he has never had a criminal record and he donates $19 per month to the Wounded Warrior Project, which he has done for the last several years and he assists fellow veterans on seeking employment. His wife is currently mentally disabled and not able to work. Before and during this process, both his father and father-in-law passed away, who were decorated Soldiers from WWII, Korea and Vietnam. He has done extremely exhausting work to reconcile his military personnel file spanning five decades. He continues to maintain the highest standards of loyal, duty, respect, selfless, honor, integrity and personal courage. In the interest of justice, he requests that an upgrade be granted. In a records review conducted at Arlington, VA on 26 September 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 635- 200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 21 June 2017 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 13 December 2016, the applicant was charged with: Six specifications of violating Article 107, UCMJ, for: On or about 6 February 2015, with intent to deceive signed and official record, to wit: Personnel Records Review Form, which record was false in that he was not a graduate of: the Ranger Course, the Sapper Leader Course (SLC), the Fort Benning Infantry Training Course and the XVIII Airborne Corps Primary Leadership Development Course (PLDC). On or about 7 February 2015, with intent to deceive signed and official record, to wit: Personnel Records Review Form, which record was false in that he was not a graduate of: the Ranger Course, the Sapper Leader Course (SLC), the Fort Benning Infantry Training Course and the XVIII Airborne Corps Primary Leadership Development Course (PLDC). On or about 31 May 2012, with intent to deceive signed and official record, to wit: DA Form 2-1, Personnel Qualification Record, which record was false in that he was not a graduate of: the Ranger Course, the Fort Benning Infantryman Course, the XVIII Airborne Corps Primary Leadership Development Course (PLDC), an Administrative Specialist Basic Noncommissioned Officer's Course (BNCOC), and an Administrative Specialist Advanced Officer's Course (ANCOC), the Explosive Ordnance Disposal Specialist Course, the Sapper Leader Course (SLC), and was not an authorized recipient of the Combat Infantry Badge (CIB). On or about 14 October 2012, with intent to deceive CSM H, an official statement, to wit: "I have taken the necessary steps to reconcile my personnel records, awards and decorations with the assistance from RPAC Supervisors (Ms. K, and Ms. M), Records Custodian (Mr. M), 3rd BDE CSM L, and have removed all awards/decorations in question from my uniform which could not be verified," or words to that effect, which statement was totally false and was then known by the said [applicant] to be so false. On or about 7 February 2015, with intent to deceive, submit to Ms. Z, official records, to wit: a Ranger Certificate dated 15 May 1978, an XVIII Airborne Corps PLDC diploma dated June 1980, a Fort Benning Infantry Training Course Certificate dated 18 August 2000, and a Sapper Certificate dated 23 August 2002, which records were totally false, and was then known by the applicant to be so false. On or about 6 February 2015, with intent to deceive, submit to Mr. C, official records, to wit: a Ranger Certificate dated 15 May 1978, an XVIII Airborne Corps PLDC diploma dated 15 June 1980, a Fort Benning Infantry Training Course Certificate dated 18 August 2000, and a Sapper Certificate dated 23 August 2002, which records were totally false, and was then known by the applicant to be so false. Two specifications of violating Article 134, UCMJ, for: On divers occasions, between or about 14 October 2012 and or about 31 May 2015, wrongfully and without authority wear upon his uniform the Ranger Tab, The Master Parachutist Badge, the Combat Infantry Badge, and the Explosive Ordnance Disposal Badge, such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. On divers occasions, between or about 6 June 2015 and or about 24 June 2015, wrongfully and without authority wear upon his uniform the Ranger Tab, The Master Parachutist Badge, the Combat Infantry Badge, and the Explosive Ordnance Disposal Badge, such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. (2) Legal Consultation Date: 27 March 2017 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date/Characterization: 10 April 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 November 2016 / Pursuant to Article 2(d) of the Uniform Code of Military Justice (UCMJ), Army Regulation 27-10, paragraph 20-3, and Army Regulation 135-200, Chapter 7, the applicant was involuntarily recalled to active duty for disposition of alleged offenses under the UCMJ, which occurred while the applicant was in a Title 10 status. b. Age at Enlistment / Education / GT Score: 57 / 4 years college / 96 c. Highest Grade Achieved / MOS / Total Service: E-8 / 42A10, Human Resources Specialist / 30 years, 2 months, 24 days d. Prior Service / Characterizations: RA, 3 October 1977 - 2 April 1980 / HD RA, 3 April 1980 - 3 April 1984 / HD (Break in Service) ARNG, 29 September 1993 - 11 December 2005 / HD USAR, 12 December 2005 - 14 July 2008 / HD USAR, 15 July 2008 - 21 June 2017 / NIF (Concurrent Service) e. Overseas Service / Combat Service: Grenada, Korea, SWA / Iraq (based on the applicant's service record: 1 January 1991 - 1 June 1991, 1 November 1993 - 1 November 1994) f. Awards and Decorations: AAM-2, AGCM-6, ARNGAM-2, ARCAM-6, ASR, OSR, AFEM-A, AFRM, SWA-3BS, ICM, GWOTEM, GWOTSM, AFRM-H, OSR-2, KLM (SA), KLM (KU) / Not all the applicant's awards listed above were annotated on his DD Form 214. The awards listed above were reflected in his service record. g. Performance Ratings: 22 May 2015 - 21 May 2016 / Highly Qualified h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Findings of Inquiry of Unauthorized Wear by [the applicant], dated 12 January 2015, reflects the investigating officer found: The investigating officer saw no documents to support the wear of a Combat Infantry Badge, an Explosive Ordnance Disposal Badge-basic, a Master Parachutist Badge, or a Ranger Tab by the applicant in his official DA photo taken 3 March 2014, or on or about 1 November 2014, during the 3d Medical Training Brigade Dining-in as reported by CSM C. The applicant did not appear to be authorized to wear an Explosive Ordnance Disposal Badge-basic IAW AR 600-8-22, paragraph 8-22a(4). "...enlisted personnel must hold the military occupational specialty 55D." There is no record that the applicant was awarded the 55D MOS. The memorandum form the U.S. Army Combined Arms Support Command states the applicant has not attended NAVSCHLEOD and ever been awarded the MOS of 89D (formerly 55D) Explosive Ordnance Disposal Technician. The applicant did not appear to be authorized to wear a Master Parachutist Badge IAW AR 600-8-22, paragraph 8-14 a through c. The applicant did not appear to be authorized to wear a Ranger Tab for several reasons. It was the opinion of the investigating officer did, in violation of UCMJ Article 134 paragraph 113, wear four unauthorized items on his uniform in his official DA photo and or on or about 1 November 2014, during the 3d Medical Training Brigade Dining-in. General Officer Memorandum Of Reprimand, dated 23 July 2015, for: A Commander's Inquiry investigation pursuant to Rule for Court-Martial (RCM) 303 has concluded that the applicant, as a non-commissioned officer did, in violation of UCMJ Article 134 paragraph 113, wrongfully wear four unauthorized items on his uniform, to wit: The Combat Infantry Badge, an Explosive Ordnance Disposal Badge-basic, a Master Parachutist Badge, or a Ranger Tab in your official DA photo taken on or about 3 March 2014; and, The Combat Infantry Badge, an Explosive Ordnance Disposal Badge-basic, a Master Parachutist Badge, or a Ranger Tab on or about 1 November 2014 during the 3d Medical Training Brigade Dining-in. His conduct of violating UCMJ Article 134, paragraph 113 was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. It furthermore represents his complete disregard of the Army Core Values. Specifically, his conduct demonstrates a lack of "Respect,'' "Honor" and "Integrity." His conduct of violating UCMJ Article 134, paragraph 113 warrants a court-martial action against him. As a U.S. Army Non-Commissioned Officer, he was obligated to lead by example and to use good judgment. By engaging in the serious acts of misconduct in violation of UCMJ Article 134, paragraph 113, he violated the trust imposed upon him to set the standard. His conduct reflects a serious lack in judgment. His conduct undermined his ability to exercise his duties and his credibility as a non-commissioned officer. Report of Preliminary Hearing, dated 14 February 2017, reflects an investigation determined that probable cause does exist to believe the applicant committed the following offenses: The specifications of the Charge, Article 107, UCMJ (False Official Statement): In that the applicant did on or about 31 May 2012, 6 February 2015, and 7 February 2015, with intent to deceive did sign official records, to wit: Personnel Records Review Forms, such records being false in that he was not a graduate of the Ranger Course, Sapper Leader Course (SLC), Fort Benning Infantry Training Course, XVIII Airborne Corps Primary Leadership and Development Course (PLDC), Administrative Specialist Basic Noncommissioned Officer's Course (BNCOC), Administrative Specialist Advanced Noncommissioned Officer's Course (ANCOC), Explosive Ordinance Disposal Specialist Course, and the he was not an authorized recipient of the Combat Infantry Badge (CIB), and was then known by the applicant to be false at the time of signing said documents. Report of Mental Status Evaluation, dated 25 April 2017, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; and, DD Form 293, with all allied documents listed in block 8 and block 14 of the application. 6. POST SERVICE ACCOMPLISHMENTS: He states, he has never had a criminal record and he donates $19 per month to the Wounded Warrior Project, which he has done for the last several years and he assists fellow veterans on seeking employment. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to general (under honorable conditions). 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 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 veterans' 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 acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge. The applicant contends the Staff Judge Advocate improperly influenced the investigating officer, which ultimately led to discharge. He further contends, that his request for a discharge in lieu of trial by court-martial was not approved. However, 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 applicant issues regarding the investigation process or the validity of his awards, were carefully considered. However, the applicant's issues do not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The applicant contends the event that caused his discharge from the Army was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends that an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character The applicant contends that he had good service. 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. The applicant is to be commended for his accomplishments. The third party statements provided with the application speak highly of the applicant's performance. They all recognize his good conduct 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 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 26 September 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 AR20170014694 8