Applicant Name:  ?????

Application Receipt Date: 2011/08/10	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant requests the following changes to his DD Form 214, in effect, for item #24 to read: General; item #26 to read: LBK; and item #28 to read: Completion of Required Active Service.  He states, in effect, that he believes his record to be in error or unjust because he was given an offer by the Government to resign, but only PRIOR to the published Article 32 findings; that the Article 32 investigating officer (IO) recommended “the charges against the accused be dismissed”; that the IO states that “my Right to Financial Privacy may have been violated by CID and the bank”; and that the Government was aware that his wife was pregnant with their second child at the time of the Article 32 investigation, which added to pressure tactics to get him to resign.

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 090310
Discharge Received: 			   Date: 090520   Chapter: 3-13       AR: 600-8-24
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: DFS   Unit/Location: HHC, USAREUR/7th Army, Germany 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  35
Current ENL Date: 040401    Current ENL Term: Indef Years  DD From 214, block 12a, dated entered AD this period
Current ENL Service: 	05 Yrs, 01 Mos, 20 Days ?????
Total Service:  		19 Yrs, 11 Mos, 27 Days ?????
Previous Discharges: 	USAR (890524-890814)
			   ADT (890815-891209) / UNC
			USAR (891210-921115) 
			   ADT (921116-930407) / HD
			USAR (930408-960624)
			   ADT (960625-970322) / HD
			USAR (970323-990910)
			   ADT (990911-030911) / HD
			USAR (030913-040330) 
Highest Grade: O-4		Performance Ratings Available: Yes    No 
MOS: 38A (Civil Affairs)   GT: NA   EDU: BS   Overseas: SWA, Germany   Combat: Iraq (070910-080109)
Decorations/Awards: ARCOM; JSAM; AAM; NDSM-2; AFEM; ICM-CS; ASR; OSR-2; ARCOTR-6; AFRM-M Device; NATO MDL 

V.  Post-Discharge Activity
City, State:  
Post Service Accomplishments: None

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 25 November 2008, the applicant was charged with larceny of per diem of a value of about $96,000 (040401-060331); with intent to deceive, signed and submitted an official document to DFAS, to wit: DD Form 1351-2, Travel Voucher, which record was false in that it claimed $4,000 for lodging expenses that he did not incur and was then known by him to be so false (040401-060331); and with intent to deceive, signed and submitted an official document to DFAS, to wit: a rental agreement with Ms. L for property at Ladenburg, Germany, which record was totally false in that he never entered into a rental agreement with said property and was then known by him to be so false (040401-060331).  
       
       On 29 January 2009, the applicant consulted with legal counsel and 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.   The applicant 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 veteran’s benefits.  The chain of command recommended approval of the resignation for the good of the Service with issuance of an under other than honorable conditions discharge.  
       
       On an unknown date, the Ad Hoc Review Board recommended that the applicant’s resignation be accepted with issuance of an under other than honorable conditions discharge.  
       
       On 23 April 2009, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

       b.  Legal Basis for Separation:  
       Army regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officer personnel.  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.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of the entire applicant’s military records during the term of service under review and the issue and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       The evidence of record shows that the applicant was charged with the commission of 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 under the provisions of Chapter 3, AR 600-8-24.  The appropriate authority approved the applicant's request and issuance of an under other than honorable conditions characterization of service.  The analyst concluded that by the misconduct, the applicant diminished the overall quality of his service below that meriting a fully honorable or general, under honorable conditions discharge.  
       
       The applicant requests a change to the narrative reason for separation.  However, the narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 3, paragraph 3-13, AR 600-8-24.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trail by Court-Martial," the separation code is "DFS."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28, separation code, entered in block 26, and RE Code, entered in block 27 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.
       
	The applicant contends he was offered to resign by the Government prior to the Article 32 investigating officer's reported findings.  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 contention.  Moreover, the applicant's records show that while the court-martial charges were preferred with a view toward trial by a general court-martial, the applicant voluntarily tendered his resignation indicating he did not desire to appear before a court-martial or board of officers, and that he had not been subjected to coercion with respect to his resignation and that he had been fully advised and counseled in the matter by his civilian counsel on 20 January 2009.  On 10 March 2009, the GCMCA recommended approval stating that the evidence supporting the charged offenses is strong, but not irrefutable, with a service as under other than honorable characterization of service.
       
       The analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
       
	In view of the foregoing, the analyst determined that the reason for discharge and the characterization of service remain both, proper and equitable and recommends to the Board to deny relief.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 21 March 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 149, dated 110729; DD Form 457, IO Report, dated 090209; Med Attest, dated 090113





























VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.
        
IX.  Board Decision						
Board Vote:
Character - Change 2    No change 3
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder















Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20110016426
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