1. Applicant's Name: a. Application Date: 27 April 2019 b. Date Received: 17 May 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is bad conduct. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, his discharge was based on one incident in five years. Towards the end of his military career, he involved with the wrong group of people and allowed one bad choice to ruin an otherwise honorable military career. At the time, he was an E-4 promotable and had no other incidents in his military career. Since his release from the military, he has received a professional barber certification. a degree in Electronics Engineering Technology, two beautiful children and does not have a criminal record. He is humbly asking for an upgrade considering his record prior to this incident, and his record since. He is asking for an opportunity to reconcile his military record, and have his benefits reinstated. In a records review conducted on 18 August 2021, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 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: Court-Martial, Other / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 12 October 2007 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 23, dated 20 November 2005, on 8 August 2005, the applicant was found guilty of the following: Charge I, in violation of Article 81. Plea: Guilty. Finding: Guilty. Specification: Did on or about 4 June 2005, conspire with Specialist M. and Private First Class W., to commit an offense under the UCMJ to wit: housebreaking of Ali's Shop on Pad 9, Camp Liberty, Iraq, the store of Mr. H. to commit larceny of the items found within and in order to effect the object of the conspiracy, Specialist M. and Specialist F. broke into and committed larceny from Ali's shop on 5 June 2005. Charge IV, in violation of Article 121. Plea: Guilty. Finding: Guilty. Specification 1: On or about 5 June 2005, steal a cell phone, of a value of about $80.00, and three $20.00 Iraqna phone cards, the property of Mr. H. Plea: Guilty. Finding: Guilty. Specification 2: On or about 5 June 2005, aid and abet Specials M. to steal a GenX MP3 player of a value of about $88.48 and $70.00 U.S. Currency, the property of Mr. H. Plea: Guilty Finding: Guilty. Charge V: in violation of Article 130. Plea: Guilty. Finding: Guilty. Specification: On or about 5 June 2005, at or near Camp Liberty, Iraq, unlawfully enter Ali's shop on Pad 9, the store of Mr. H., with intent to commit a criminal offense, to wit: larceny therein. Plea: Guilty. Finding: Guilty. Charge VI: in violation of Article 134. Plea: Guilty. Finding: Guilty. Specification: On or about 6 June 2005, at or near Camp Liberty, Iraq, unlawfully enter Ali's shop on Pad 9, the store of Mr. H. Plea: Guilty. Finding: Guilty. (2) Adjudged Sentence: Reduction to E-1; to be confined for five months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 8 August 2005 / only so much of the sentence, a reduction E-1, confinement for five months, and a bad conduct discharge was approved; and, except for that part of the sentence extending to a bad conduct discharge, would be executed. (4) Appellate Reviews: NIF (5) Date Sentence of BCD Ordered Executed: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 January 2001 / 4 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 63B10, Wheeled Vehicle Mechanic / 6 years, 5 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (NIF) f. Awards and Decorations: AGM, NDSM, GWOTEM, GWOTSM, ICM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. i. Lost Time / Mode of Return: 124 days: (NIF, 7 August 2005 - 9 December 2005 / NIF j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; DA Form 4874; ITT Technical Institute Certificate. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided evidence that he received a degree in Electronics Engineering Technology. He also states he received his professional barber certification. 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 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (3) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (4) Section IV establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed. Because relevant and material facts stated in a court-martial specification are presumed by the ADRB to be established facts, issues relating to the applicant's innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the ADRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment 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 "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial, Other. f. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JJD" will be assigned an RE Code of "4." 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 requests an upgrade to general (under honorable conditions) The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The service record indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends since his release from the military he has received his professional barber certification and a degree in Electronics Engineering Technology. Also he has no criminal record. 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 applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran's 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. 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, a voting member, reviewed all available medical records and found no BH diagnoses on the applicant. The applicant provided no documents or testimony during the personal appearance that, when applying liberal consideration, convinced the Board of a possible mitigating BH condition. (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 Contentions: (1) The applicant requests an upgrade to general (under honorable conditions) The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The service record indicates the applicant was adjudged guilty by a court- martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The was insufficient independent corroborating evidence that would lead the Board to belief relief was warranted. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. (3) The applicant contends since his release from the military he has received his professional barber certification and a degree in Electronics Engineering Technology. Also he has no criminal record. 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. (4) The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. (5) The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran's 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. c. The Board denied the request upon finding the separation was both proper and equitable. The Board determined that the documentation contained in the AMHRR, as well as evidence submitted by the applicant, and the available medical evidence did not support a finding that the applicant's discharge was improper or inequitable. However, the applicant may request a personal appearance hearing to address the 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 was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, despite applying liberal consideration, there were no BH diagnoses which identified issues of mitigation for the numerous larceny offenses, the applicant did not supply sufficient independent corroborating evidence to support contentions, and 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 determined the discharge reason was proper and equitable and voted not to change it. (3) Because the characterization and reason were not changed, the SPD/RE codes will not change. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / 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 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 AR20190007316 1