1. Applicant's Name: a. Application Date: 17 November 2017 b. Date Received: 20 November 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, the discharge was inadequate because it was based on an isolated incident in over ten years of exemplary service with no other adverse action. Since discharge, the applicant has been an outstanding, productive citizen and a successful business owner, where the applicant has had the privilege of mentoring youth through martial arts trainings. The applicant is now older with children. The applicant understands the importance of the current discharge. In a records review conducted at Arlington, VA on 7 August 2019, and by a 3-2 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: 10 November 2005 c. Separation Facts: (1) In Lieu of DD Form 458 (Charge Sheet): On 12 October 2005, the following charges were preferred for trial by a special court-martial, empowered to adjudge a bad conduct discharge: Charge I: Violation of Article 90, UCMJ: on 1 September 2005, the applicant, having received a lawful command to have no contact with Mrs. M.C., willfully disobeyed MAJ R.P.R., his superior commissioned officer. Charge II: Violation of Article 107, UCMJ: on 11 July 2005, with intent to deceive, altering an official record, to wit: DA Form 689, granting 48 hours of additional quarters, which was known by the applicant to be so false. (2) Legal Consultation Date: 14 October 2005 (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: 28 October 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 May 2002 / 3 years, 11 months (extended by 11 months on 14 May 2003) b. Age at Enlistment / Education / GT Score: 20 / 13 years / 111 c. Highest Grade Achieved / MOS / Total Service: E-6 / UNK / 9 years 13 days d. Prior Service / Characterizations: RA (28 December 1995 to 10 December 1997) / HD RA (11 December 1997 to 1 May 2002) / HD e. Overseas Service / Combat Service: Hawaii / None f. Awards and Decorations: ARCOM; AAM-3; AGCM-2; NDSM-2; GWOTSM; NCOPDR- 2; ASR; OSR; ASUA g. Performance Ratings: Two NCOERs rendered during period of service under current review: May 2002 thru November 2002, Among the Best December 2002 thru June 2003, Among the Best h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for leaving his place of duty (class) without permission; failing to follow class procedures for out-of-class time; continuously being late for class after breaks and lunch breaks; falsifying official medical documents; lying to an NCO; practicing medicine without certification; being derelict in the performance of his duties; failing to be at his appointed place of duty at the prescribed time on numerous occasions; being late for staff duty; attempting to coerce a Soldier to cover up; failing to obey an order or regulation; being absent without leave; abandoning watch or guard duty; and being given a direct order to have no contact with his girlfriend. Charge Sheet described at the preceding paragraph 3c(1), and its associated documents (i.e., statements). i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 17 November 2017, and DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, that since his discharge, he has been an outstanding productive citizen and a successful business owner, where he has the privilege of mentoring youth through martial arts trainings. 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. Further, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, section II.) However, for Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper, and when characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized. AR 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, "In Lieu of Trial by Court-Martial." The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant's available record of service, and the issues and document 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 applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant contends the discharge was unjust because it was based on an isolated incident. 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 his issues. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. Insofar as being discharged based on an isolated incident, although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, the Board can find that his accomplishments and complete period of service were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. 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 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 7 August 2019, and by a 3-2 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 AR20180001147 1