1. Applicant's Name: a. Application Date: 16 July 2020 b. Date Received: 21 July 2020 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant, through counsel, requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, impropriety because of the overwhelming evidence of superb performance of duty, good character, and no other discipline. inconsistent The applicant cites disciplinary standards at the time per the criteria in 32 CFR 70.9(c)(2). The applicant's discharge under other than honorable conditions was inequitable because, except for the incident of misconduct, the applicant's raters had assessed the applicant as being an outstanding junior officer who merited being cited as best qualified among the peers. After being charged with misconduct for attempting to bring foreign small arms souvenirs home from deployment illegally, the applicant's performance while awaiting the disposition of the case continued to be superb, as attested to by the applicant's supervisors and coworkers. The applicant was awarded an Army Commendation Medal for the deployment during which the misconduct occurred by the very command which preferred charges against the applicant. For these reasons, the applicant should have been awarded not less than a general (under honorable conditions) upon separation. Since the discharge, the applicant has been continuously employed in positions with government contractors which require a high level of trust and responsibility. The applicant's work performance and personal character have been exceptional, as attested to by peers and supervisors. The applicant recently was granted a Top Secret Sensitive Compartmented Information (SCI) clearance despite the nature and character of his discharge. The applicant's post-service conduct provides an additional basis in equity for upgrading the nature and character of the discharge. b. Board Type and Decision: In a records review conducted on 21 July 2023, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service (to include combat service and post service accomplishments) outweighing the applicant's attempting to ship a pistol outside the CENTCOM area of responsibility (AOR), stealing a captured enemy pistol, and failure to give notice and turn over to proper authority without delay a captured pistol. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason/SPD code were proper and equitable and voted not to change them Please see Section 10 of this document for more detail regarding the Board's decision. (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 / Under Other Than Honorable Conditions b. Date of Discharge: 19 August 2005 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 20 February 2005, the applicant was charged with: Charge I: Violating Article 80, UCMJ, The Specification: The applicant did in Iraq, on 6 February 2005, attempt to violate a lawful general order, by wrongfully attempting to ship contraband items, to wit: one pistol outside the CENTCOM area of responsibility (AOR). Charge III [sic]: Violating Article 103, UCMJ, The Specification: The applicant did, in Iraq, on 6 February 2005, fail to give notice and turn over to proper authority without delay certain captured property which had come into the applicant's possession, to wit one pistol (firearm), of a value of less than $500. Charge IV [sic]: Violating Article 121, UCMJ, The Specification: The applicant did in Iraq on 6 February 2005, steal one captured enemy pistol, military property, of a value less than $500, the property of the United States Government. Charge V [sic]: Violating Article 133, UCMJ: Specification 1: The applicant did in Iraq in November 2004, willfully and wrongfully involve a junior officer in the applicant's scheme to smuggle contraband in the form of illegally retained firearms from CENTCOM AOR into the United States by telling First Lieutenant (1LT) K. L. about the applicant's plan to take contraband items back to the U.S., by asking 1LT K. L. to give the applicant to obtain and provide information regarding customs inspections practices and procedures and by asking 1LT K. L. not to tell anyone about the plan. Specification 2: The applicant did between 1 September 2004 to 1 February 2005, on diverse occasions willfully and wrongfully behave with disrespect toward Lieutenant Colonel (LTC) J. A., a superior commissioned officer, by saying in the presence of a junior officer, the 1°- 8 command, including LTC J. A., group was just a "bunch of quivering idiots out to get Officer Evaluation Report (OER) bullets," or words to that effect. Specification 3: The applicant did between 1 September 2004 to 1 February 2005, on diverse occasions willfully and wrongfully behave with disrespect toward Major (MAJ) C. L., a superior commissioned officer, by saying in the presence of a junior officer, MAJ C. L. only goes out on missions to get OER bullets, or words to that effect. (2) Legal Consultation Date: 8 April 2005 (3) Basis for Separation: Pursuant to applicant's request for Resignation for the Good of the Service In Lieu of General Court-Martial under the provisions of Chapter 3, AR 600-8-24. (4) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Appointment: 2 June 2001 / NIF b. Age at Appointment: / Education: 24 / Bachelor's Degree c. Highest Grade Achieved / MOS / Total Service: O-3 / 19A 3J, Armor Officer / 7 years, 7 months, 26 days d. Prior Service / Characterizations: RA, 11 October 1995 - 29 June 1997 / HD USARCG, 30 June 1997 - NIF CDT, 30 June 1997 - 1 June 2001 / NA NIF, 13 September 1999 - 1 June 2001 / NIF e. Overseas Service / Combat Service: SWA / Iraq (6 March 2004 - 20 March 2005) f. Awards and Decorations: ARCOM, GWOTSM, AGCM, ICM, NDSM-2, ASR / The applicant's AMHRR reflects award of the CAB, however, the award is not reflected on the DD Form 214. g. Performance Ratings: 10 November 2001 - 30 June 2005 / Best Qualified h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Memorandum, subject: Request for UCMJ action concerning contraband violations, dated 8 February 2005, reflects the battalion commander conduct a commander's inquiry and concluded there was sufficient evidence to pursue UCMJ action against the applicant and another officer. Investigation revealed the immediate commander discovered disassembled weapons in duffle bags of the applicant and the other officer. The company was in the process of pre-inspections of personal bags before the official Customs Inspection of military vans (MilVans). Waiver of Rights Under Article 32(b), dated 3 May 2005, reflects the applicant unconditionally waived the Article 32(b) Investigation of charges preferred against the applicant. United States Army Human Resources Command (HRC) Message, subject: Resignation for the Good of the Service, dated 2 August 2005, reflects HRC requested the organization issue or direct orders effecting the applicant's general (under other than honorable conditions) discharge. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief, with all listed enclosures 1 through 10; DD Form 214; separation documents; LTC (P) M. B's letter; ARCOM, along with other awards and decorations; OERs; in-service character references; post-service character references; post-service résumé; and Top Secret Clearance. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has been continuously employed in positions with government contractors which require a high level of trust and responsibility, exceptional performance, and personal character, and was granted a Top Secret SCI clearance. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. (1) Paragraph 1-23, provides the authorized types of characterization of service or description of separation. (2) Paragraph 1-23a, states an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance under DODI 5200.02 and AR 380-67 for reasons that do not involve acts of misconduct for an officer. (3) Paragraph 1-23b, states an officer will normally receive a general (under honorable conditions) characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 1-23c, states a discharge under other than honorable conditions is an administrative separation from the service. A discharge certificate will not be issued. An officer will normally receive an under other than honorable conditions when he or she: Resigns for the good of the Service; is dropped from the rolls (DFR) of the Army in accordance with paragraph 5-9; (3) is involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance under DODI 5200.02 and AR 380-67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed; and, is discharged following conviction by civilian authorities. (5) Chapter 3, prescribes the rules for processing voluntary resignations. Except as provided in paragraph 3-1b, any officer of the RA or USAR may tender a resignation under the provisions of this chapter. SECARMY (or designee) may accept resignations and orders will be issued by direction of the CG, HRC. An officer whose resignation has been accepted will be separated on the date specified in DA's orders or as otherwise directed by the DA. An appropriate discharge certificate as specified by the CG, HRC, will be furnished by the appropriate commander at the time the officer is separated. The date of separation, as specified or directed, will not be changed without prior approval of HQDA nor can valid separation orders be revoked subsequent to the specified or directed date of separation. Except when resignation is under paragraph 3-9, USAR officers in an AGR status or on ADOS and Soldiers on AD pursuant to 10 USC 12304 will request resignations under the provisions of AR 135-175. Before such a request is submitted, they must be released from their AD status. Under normal circumstances, any RA officer or USAR officer who has completed their 8-year MSO may submit a request for unqualified resignation, provided all Service remaining requirements have been met. Such application will be submitted not earlier than 12 months or less than 6 months prior to the requested separation date. The 6-month requirement may be waived by the SAA, except in the case of an officer who has not fulfilled the 8-year MSO, or is requesting a Reserve commission concurrent with REFRAD. Appropriate documentation must accompany the request. (6) Paragraph 3-9 (previously 3-13), outlines the rules for processing requests for resignation for the good of the Service in lieu of general court-martial. (7) Paragraph 3-9i, states an officer separated under this paragraph normally receives characterization of service of under other than honorable conditions. e. 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 Army Regulation 600-8-24, Chapter 3-9 or 3-13, in lieu of general court-martial. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to general (under honorable conditions). The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends the event which led to the resignation from the Army was an isolated incident. Army Regulation 600-8-24, paragraph 1-23, 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 being deprived of the opportunity to take advantage of the same amnesty opportunities provided to other members of the unit. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends being continuously employed in positions with government contractors which require a high level of trust and responsibility, exceptional performance, and personal character, and obtaining a Top Secret SCI clearance. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. 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 third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good military service and/or good conduct after leaving the Army. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. The Board's Medical Advisor reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contends the event which led to the resignation from the Army was an isolated incident. The Board considered this contention and determined that the event which led to discharge being an isolated incident does not excuse or outweigh the applicant's misconduct or the basis for separation. (2) The applicant contends being deprived of the opportunity to take advantage of the same amnesty opportunities provided to other members of the unit. The Board considered this contention and determined there is insufficient evidence to support this contention. However, the Board voted to upgrade the applicant's characterization of service to General, Under Honorable Conditions based on the applicant's length/quality of service (to include combat service) and post service accomplishments. (3) The applicant contends good service, including a combat tour. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. (4) The applicant contends being continuously employed in positions with government contractors which require a high level of trust and responsibility, exceptional performance, and personal character, and obtaining a Top Secret SCI clearance. The Board considered this contention and voted to upgrade the applicant's characterization of service to General, Under Honorable Conditions. c. The Board determined that the characterization of service was inequitable based on the applicant's length and quality of service (to include combat service) and post service accomplishments outweighing the applicant's attempting to ship a pistol outside the CENTCOM area of responsibility (AOR), stealing a captured enemy pistol, and failure to give notice and turn over to proper authority without delay a captured pistol. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason/SPD code was proper and equitable and voted not to change it. The applicant may request a personal appearance hearing to address further issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge and assigned narratives/codes were improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant's length and quality of service (to include combat service) and post service accomplishments outweigh the applicant's misconduct (attempting to ship a pistol outside the CENTCOM area of responsibility (AOR), stealing a captured enemy pistol, and failure to give notice and turn over to proper authority without delay a captured pistol. Thus, the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code as the reason for discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20200008890 1