1. Applicant's Name: a. Application Date: 19 November 2020 b. Date Received: 26 April 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests, through counsel, an upgrade to honorable and a narrative reason change along with a separation program designator (SPD) and reentry (RE) code change. The applicant's counsel seeks relief contending, in effect, the applicant's discharge was unfair and was both procedurally and substantively defective. In a telephonic personal appearance hearing conducted on 6 December 2021, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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 (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: NIF (6) Separation Decision Date / Characterization: NIF 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 - 3 June 1993 / NA IADT, 4 June 1993 - 10 August 1993 / UNC USAR, 11 August 1993 - 4 January 1994 / NA ROTC, 5 January 1994 - 10 December 1995 / NA USAR Appointment, 11 December 1995 - 8 March 1996 / NA e. Overseas Service / Combat Service: Korea / NIF f. Awards and Decorations: ARCOM-2, AAM, NDSM-2, GWOTSM, KDSM, ASR, OSR, Ranger Tab, EIB, Parachutist Rigger Badge, Parachutist Badge, Air Assault Badge g. Performance Ratings: 1 July 1996 - 27 May 1997 / Always Exceeded 28 May 1997 - 30 September 1997 / Always Exceeded 1 October 1997 - 30 September 1998 / Best Qualified 1 October 1998 - 15 March 1999 / Best Qualified 16 March 1999 - 2 September 1999 / Best Qualified 3 September 1999 - 1 June 2000 / Best Qualified 17 December 2000 - 16 December 2001 / Best Qualified 17 December 2001 - 7 June 2002 / Best Qualified 8 June 2002 - 10 February 2003 / Best Qualified 11 February 2003 - 31 December 2003 / Best Qualified 1 January 2004 - 23 June 2004 / Best Qualified 24 June 2004 - 10 October 2004 / Best Qualified 11 October 2004 - 31 May 2005 / Do Not Promote 1 June 2005 - 12 February 2006 / Best Qualified h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation-Final/SSI, dated 1 December 2005, reflects an investigation established probable cause to believe the applicant committed the offenses of Larceny of Government Funds, Wire Fraud, and Making and Uttering Worthless checks when he utilized a unit and FRG bank account for personal expenditures for approximately $17,000 and committed the offense of False Swearing when he provided sworn statements which contained false information that he knew to be false. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Audit Trail, Previous ADRB Records Review, with a Response to Advisory Opinion, Email, OER 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 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), dated 25 September 2019, 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 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. 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, Chapter3, paragraph 3-9, for "In Lieu of Trial by Court-Martial." 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests, through counsel, an upgrade to honorable and a narrative reason change along with a SPD and RE code change. 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. 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 the SPD code "DFS" and a RE code of "NA." 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 applicant's counsel contends the applicant's discharge was unfair and was both procedurally and substantively defective. The applicant requests to change the narrative reason for the separation and the SPD and RE codes. The narrative reason for the applicant's 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. 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. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): 10. 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 the 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's counsel contends the applicant's discharge was unfair and was both procedurally and substantively defective. 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 unfairly discharged. The Board considered this contention carefully, but concluded that the applicant offered to resign for the good of the Service to avoid court martial rather than to fight charges in court, indicating the applicant was guilty of the charges, including false swearing, wire fraud, making and uttering worthless checks, and larceny of government funds. After weighing all the evidence, the Board found no unfairness or impropriety. (2) The applicant requests to change the narrative reason for the separation and the SPD and RE codes. The Board found the weight of the evidence did not support an upgrade to the discharge, or change to the current SPD and reentry code. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, the Board found the weight of the evidence did not support any mitigation of the offenses of larceny of government funds, wire fraud, making and uttering worthless checks, as well as uttering a false official statement that were the basis for separation. 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. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was 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. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change 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 AR20210012820 5