1. Applicant's Name: a. Application Date: 4 October 2017 b. Date Received: 10 October 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant through legal counsel requests an upgrade of an under other than honorable conditions discharge to honorable and a change of narrative reason for discharge to Secretarial Authority. The applicant seeks relief contending, in effect, that the command failed to properly assess the evidence supporting the awarding of the GOMOR's in question as well as their failure to properly consider the global effects of such matters both on the applicant and on the morale of the unit witnessing the separation as required by law and regulation meeting the requirements under both propriety and equity, thus justice demands the applicant receive the requested relief. Equity: Because the reasons underlying the applicant first GOMOR were largely outside of the applicant's direct control and thus the punishment associated with a permanently filed GOMOR was clearly inequitable when considered in light of the violation. Further, the second GOMOR resulted from the findings and recommendations of an investigation that, as a matter of law and fact, was legally insufficient to support the violation alleged, the particular, the elements of intent as required under the UCMJ, and thus are materially inequitable requiring corrections. Propriety: Because the command failed to properly assess the circumstance leading to the GOMOR's in light of the de minimums incidents of misconduct that remain, represent an error of fact, law, procedure, or discretion wholly and unquestionably prejudicial to applicant. For all the enumerated reason it is respectfully submitted to the honorable board that the applicant should have the characterization of service upgraded to honorable and narrative reason for separation changed from in lieu of trial by court martial to secretarial authority. In a records review conducted at Arlington, VA on 19 April 2019, 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: 11 March 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 June 2014 (2) Basis for Separation: The applicant was informed to show cause for retention on active duty under the provisions of AR 600-8-24, paragraph 4-2a(8), failure to conform to prescribed standards of military deportment: paragraph 4-2b(5), acts of personal misconduct; paragraph 4-2b(8), conduct unbecoming an officer; and paragraph 4-2c, and , derogatory information, for the following reasons, On 30 May 2014 a GOMOR he received for improperly manipulating Space A travel was directed to be filed in his performance fiche On 19 July 2013, a GOMOR he received for having his USAREUR license suspended for traffic violations, multiple FTR's, and allowing a non-licensed person to drive his vehicle was filed in his local personnel file The evidence of record contains a DD Form 458, Charge Sheet which indicates on 24 September 2014, the applicant was charged with the following: Charge I; Violation of the UCMJ, Article 86 Specification: Without authority absent himself from his unit, from 24 June 2014 and until on or about 30 June 2014 Charge II; Violation of the UCMJ, Article 92. Specification 1: Wrongfully violating a lawful general regulation by operating a motor vehicle with a suspended license on 16 October 2013 Specification 2: Violating a lawful general regulation by operating a motor vehicle with a suspended license on 8 November 2013 Charge III: Violation of the UCMJ, Article 107 Specification 1: With intent to deceive, signed an official document, to wit: block 13 of Department of the Army Form 31, which record was false in that he was not the approving authority, and was then known by the applicant to be so false on 2 April 2014. Specification 2: With intent to deceive, signed an official document, to wit: block 14 of Department of the Army Form 31, which record was false in that he was not the departure authority, and was then known by the applicant to be so false on 2 April 2014. Specification 3: With intent to deceive, signed an official document, to wit, block 13 of Department of the Army Form 31, which record was false in that he was not the approving authority, and was then known by applicant to be so false between 13 June 2014 and 24 June 2014. Specification 4: With intent to deceive, signed an official document, to wit, block 14 of Department of the Army Form 31, which record was false in that he was not the departure authority, and was then known by applicant to be so false between 13 June 2014 and 24 June 2014. Charge IV: Violation of the UCMJ, Article 123. Specification 1: With intent to defraud, falsely made the signature of the approving authority to a certain Department of the Army Form 31 in the following word and figures, to wit: Captain G.L. IV." Which said Department of the Army Form 31 would, if genuine, apparently operated to the legal harm of another and which was used to the legal harm of the United States Government, in that it was used to circumvent Space Available travel procedures on 2 April 2014. Specification 2: With intent to defraud, falsely made the signature of the approving authority to a certain Department of the Army Form 31 in the following words and figures, to wit: the approval authority signature, which said Department of the Army Form 31 would, if genuine, apparently operated to the legal harm of another and which was used to the legal harm of the United States Government, in that it was used to circumvent Space Available travel procedures between 13 June 2014 and 24 June 2014. Charge V: Violation of the UCMJ, Article 133 Specification 1: Wrongfully and dishonorably placed his name on the Space Available travel wait list, despite being flagged from taking leave on 13 June 2014. Specification 2: Wrongfully utilized the findings of the Army Regulation 15-6 investigation into his forged leave form from April 2014 to wrongfully circumvent Space Available travel procedures on 24 June 2014 (3) Legal Consultation Date: On 8 October 2014, the applicant voluntarily tendered his resignation from the Army for the good of the service under the provisions of AR 600-8-24, chapter 3-13. He did not desire to appear before a court-martial. He noted he had not been subject to coercion with respect to this resignation, had not been advised of, and fully understood the implications of this action. (4) GCMCA Recommendations Date / Characterization: 9 October 2014 / Under Other Than Honorable Conditions (5) DA Ad Hoc Review Board: NIF (6) Separation Decision Date / Characterization: On 9 February 2015, the Deputy Assistant Secretary of the Army (Review Boards) having reviewed the resignation for the good of the service in lieu of General Court-Martial tendered by the applicant, accepted his resignation and directed that the applicant be discharged from the United States Army with an under other than honorable conditions characterization of service. 4. SERVICE DETAILS: a. Date / Period of Appointment: 7 April 2011 / NIF b. Age at Appointment / Education / GT Score: 23 / BS / NA c. Highest Grade Achieved / MOS / Total Service: O-2 / 11A 5P, Infantryman / 6 years, 5 months, 13 days d. Prior Service / Characterizations: ARNG, 29 September 2008 to 12 September 2010 / NIF Appointed 2LT / USAR (13 September 2010 to 6 April 2011) NA e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR, OSR g. Performance Ratings: 13 September 2010 to 19 September 2012, Best Qualified 20 September 2012 to 11 January 2013, Best Qualified 12 January 2013 to 19 May 2013, Fully Qualified 20 May 2013 to 25 March 2014, Fully Qualified 26 March 2014 to 6 May 2014, Not Qualified 7 May 2014 to 26 February 2015, Qualified h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 2 May 2013, showing the applicant was the subject of investigation for operating USAREUR plated vehicle while driving privileges ineligible / allowing an unlicensed person to operate a USAREUR plated vehicle and failure to obey order or regulation General Officer Memorandum of Reprimand, dated 3 June 2013, for conduct unbecoming an officer and for knowingly allowing his spouse to operated his vehicle without a USAREUR license. AR 15-6 Investigation, dated 11 April 2014, reference the attempted travel of the applicant and his two dependents on an Air Mobility Command (AMC) flight departing from Ramstein Air Base on Thursday, 3 April 2014. It was noted that a preponderance of the evidence supported the findings that the applicant had not been authorized to take 30 days of emergency leave and the his DA Form 31, dated 31 March 14, had not been validly signed and was not appropriately utilizing the Space-A Travel program on the AMC flight in question. General Officer Memorandum of Reprimand, dated 6 May 2014 for submitting a false and fraudulent leave form to Air Force authorities, forging the signature of a superior commissioned officer, and engaging in conduct unbecoming an officer. Report of Mental Status Evaluation, dated 25 November 2014, which noted that the applicant could understand and participate in administrative proceedings and appreciated the difference between right and wrong. Several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; brief in support of application; certificate for Bachelor of Science degree; appointment memorandum; Infantry Basic Officer Leader Course certificate; Service School Academic Evaluation Report; promotion to 1LT orders; statement from wife; rebuttal memorandum for reprimand issue; copy of Red Cross Message; sworn statements; and findings and recommendations of AR 15-6 investigation. 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. 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 enlisted Soldiers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 3, and paragraph 3-13, for "In Lieu of Trial by Court-Martial. 8. DISCUSSION OF FACT(S): The applicant through legal counsel requests an upgrade of his under other than honorable conditions discharge to honorable and a change of his narrative reason for discharge to Secretarial Authority. 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 requested a change of his narrative reason for discharge to Secretarial Authority. 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, and paragraph 3-13, in lieu of trial by court-martial. The regulation further stipulates no deviation is authorized. The applicant seeks relief contending that his command failed to properly assess the evidence supporting the awarding of the GOMOR's in question as well as their failure to properly consider the global effects of such matters both on the applicant and on the morale of the unit witnessing the separation as required by law and regulation meeting the requirements under both propriety and equity, thus justice demands the applicant receive the requested relief. Equity: Because the reasons underlying the applicant first GOMOR were largely outside of his direct control and thus the punishment associated with a permanently filed GOMOR was clearly inequitable when considered in light of the violation and further, the second GOMOR resulted from the findings and recommendations of an investigation that, as a matter of law and fact, was legally insufficient to support the violation alleged, the particular, the elements of intent as required under the UCMJ, and thus are materially inequitable requiring corrections; and Propriety: Because the command failed to properly assess the circumstance leading to the GOMOR's in light of the de minimums incidents of misconduct that remain, represent an error of fact, law, procedure, or discretion wholly and unquestionably prejudicial to applicant. The applicant's contentions were noted; however, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his command failed to properly assess the evidence supporting the awarding of the GOMOR's in question. The AR 15-6 Investigation, dated 11 April 2014, reference the attempted travel of the applicant and his two dependents on an Air Mobility Command (AMC) flight departing from Ramstein Air Base on Thursday, 3 April 2014 for example. It was noted that a preponderance of the evidence supported the findings that the applicant had not been authorized to take 30 days of emergency leave and that his DA Form 31, dated 31 March 14, had not been validly signed and was not appropriately utilizing the Space-A Travel program on the AMC flight in question. The applicant's incident of improperly manipulating Space A travel, having his USAREUR license suspended for traffic violations, multiple FTR's, and allowing a non-licensed person to drive his vehicle, adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. 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 19 April 2019, 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 AR20170019399 5