1. Applicant's Name: a. Application Date: 18 January 2018 b. Date Received: 19 January 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade under other than honorable conditions discharge to honorable, and to change the narrative reason and its corresponding reentry code for discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the underlying basis for the applicant's discharge was procedurally defective at the time of separation. The adverse action that includes the discharge was unfair at the time. The applicant's actions relating to a court-martial were not criminal, but mistakes. The applicant admits to making mistakes, but did not act with a criminal intent. Preponderance of the evidence shows that an error or injustice exists. There was insufficient proof that the applicant ever committed any illegal acts as an officer-the applicant was never found guilty of any offenses and the charges remain unsubstantiated. The UOTH discharge is now inequitable and served its purpose. The applicant requests any negative documents be set aside in its entirety and the issuance of a corrected DD Form 214. (The counsel for the applicant, detailed the events and circumstances surrounding the discharge.) The applicant completed 10 years of honorable service as demonstrated by military records, personal affidavit, and character reference and supporting letters. The applicant's detailed trial defense counsel did not provide proper counsel. The applicant relied on detailed counsel's advice as the applicant had never been involved in a criminal investigation. The counsel advised the applicant to apply for an upgrade upon discharge and that it would be granted. Since discharge, the applicant successfully raised four children. The applicant successfully manages up to 75 employees as a warehouse manager. Granting relief would significantly impact ability to receive proper benefits and recognition. In a records review conducted at Arlington, VA on 8 July 2020, 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 (currently paragraph 3-9) / DFS / NA / Under Other Than Honorable Conditions b. Date of Discharge: 25 March 2006 c. Separation Facts: (1) DD Form 458, Charge Sheet: NIF (2) Basis for Separation: NIF, but pursuant to applicant's request for discharge under the provisions of Chapter 3, AR 600-8-24, Resignation for the Good of the Service in lieu of Trial by General Court-Martial (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (5) ADHOC: 2 March 2006 (NIF) / Under Other Than Honorable Conditions (6) Separation Decision Date / Characterization: 2 March 2006 (NIF) / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Appointment: 9 March 1996 / Ordered to AD for 3 years for AD commitment, pursuant to Orders 37-5-A-87, dated 6 February 1996 (Indefinite term commenced upon applicant's acceptance of his appointment in the USAR) b. Age at Appointment / Education / GT Score: 22 / Bachelor of Science Degree / NA c. Highest Grade Achieved / MOS / Total Service: O-3 / 92A 2B, Quartermaster, General / 14 years, 3 days d. Prior Service / Characterizations: USAR (23 March 1992 to 3 June 1993) / NA IADT (4 June 1993 to 10 August 1993) / UNC USAR (11 August 1993 to 4 January 1994) / NA ROTC (5 January 1994 to 10 December 1995) / NA USAR Appointment (11 December 1995 to 8 March 1996) / NA e. Overseas Service / Combat Service: Korea / NIF f. Awards and Decorations: ARCOM-2; AAM; NDSM-2; GWOTSM; KDSM; ASR; OSR g. Performance Ratings: 14 OERs: 1 July 1996 thru 27 May 1997, Always Exceeded Requirements 28 May 1997 thru 30 September 1997, Always Exceeded Requirements 1 October 1997 thru 30 September 1998, Outstanding Performance, Must Promote 1 October 1998 thru 15 March 1999, Outstanding Performance, Must Promote 16 March 1999 thru 2 September 1999, Outstanding Performance, Must Promote 3 September 1999 thru 1 June 2000, Outstanding Performance, Must Promote 17 December 2000 thru 16 December 2001, Outstanding Performance, Must Promote 17 December 2001 thru 7 June 2002, Outstanding Performance, Must Promote 8 June 2002 thru 10 February 2003, Outstanding Performance, Must Promote 11 February 2003 thru 31 December 2003, Outstanding Performance, Must Promote 1 January 2004 thru 23 June 2004, Outstanding Performance, Must Promote 24 June 2004 thru 10 October 2004, Outstanding Performance, Must Promote 11 October 2004 thru 31 May 2005, RFC, Unsatisfactory Performance, Do Not Promote 1 June 2005 thru 12 February 2006, Outstanding Performance, Must Promote h. Disciplinary Action(s) / Evidentiary Record: Discharge Orders i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 239 (Application for the Review of Discharge), dated 18 January 2018, with attorney-authored brief; applicant's personal affidavit; and five character reference/supporting statements. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant states, in effect, that since the applicant's discharge, he has been employed and successfully manages up to 75 employees as a warehouse manager. 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 officers who are discharged under the provisions of AR 600-8-24, Chapter 3, paragraph 3-13, currently paragraph 3-9, for "In Lieu of Trial by Court-Martial." 8. DISCUSSION OF FACT(S): The applicant requests to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason and the reentry code for his discharge. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The applicant's available service record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. 2. The DD Form 214 indicates that on 25 March 2006, the applicant was discharged under the provisions of AR 600-8-24, Chapter 3, Paragraph 3-13 (currently paragraph 3-9), for "In Lieu of Trial by Court-Martial," with a characterization of service of under other than honorable conditions. The DD Form 214 also shows a Separation Program Designator (SPD) code of DFS and a reentry (RE) code of "NA." If the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. In explaining the applicant's discharge under the provisions of AR 600-8-24, Chapter 3, Paragraph 3-13, currently paragraph 3-9, the evidence of record would have shown that the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge. The evidence would have further shown that the applicant consulted with legal counsel; that he voluntarily tendered his resignation from the Army in writing, under the provisions of Chapter 3, AR 600-8-24, for the good of the Service in lieu of trial by a general court-martial or a board of officers; that the applicant would have indicated he understood that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans' benefits; and that the chain of command had recommended approval of the resignation for the good of the Service with issuance of an under other than honorable conditions discharge. The available record shows that on 2 March 2006, the Ad Hoc Review Board recommended that the applicant's resignation be accepted with issuance of an under other than honorable conditions discharge, and that on 2 March 2006, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board and directed discharge with a characterization of service of under other than honorable conditions. 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 complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The applicant contends the discharge was unjust, unfair, and inequitable because his discharge was procedurally defective at the time of his separation; that his actions related to court-martial were not criminal, but mistakes; that there was insufficient proof that he ever committed any illegal acts as an officer as he was never found guilty of any offenses and the charges remain unsubstantiated; his detailed trial defense counsel did not provide him proper counsel as he relied on his detailed counsel's advice because he had never been involved in a criminal investigation; and it has served its purpose. His contentions were carefully considered. 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 sufficient evidence to support the contention that he was unjustly discharged. The applicant's statements through his counsel alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for his discharge. The third party statements provided with the application speak highly of the applicant's performance and character. However, the persons providing the character reference/supporting 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 applicant requests to change the narrative reason for his separation and its reentry code; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under AR 600-8-24, Chapter 3, and paragraph 3-13, currently paragraph 3-9, is "In Lieu of Trial by Court-Martial," and the separation code is DFS. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Further, Army Regulation 635-8 (Separation Processing and Documents), paragraph 5-6 (Rules for completing the DD Form 214), paragraph 5.6z.aa., stipulates that for block 27, reentry code, AR 601-210 determines reentry eligibility and provides regulatory guidance on reentry codes, but that the codes are not applicable to officer discharges. Insofar as the applicant's request that any negative documents be set aside in its entirety and the issuance of a corrected DD Form 215, the applicant's requested changes to the DD Form 214 and issuance of a DD Form 215 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's issue about an upgrade based on his trial defense counsel's advice was carefully considered. However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable. The applicant contends that an upgrade of his discharge would allow him to receive proper benefits and recognition. However, eligibility for veterans' benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 8 July 2020, 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 AR20180002892 1