1. Applicant's Name: a. Application Date: 25 April 2019 b. Date Received: 21 May 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is Bad Conduct. The applicant requests, through counsel an upgrade to honorable or general (under honorable conditions) and a narrative reason change. Counsel further request copies of all pre-decisional documents used to prepare the Case Report and Directive. The applicant's counsel seeks relief contending, in effect, the applicant's discharge should be upgraded based on his exemplary post-separation conduct, the non-violet nature of his misconduct, and based on guidance issued by the Wilkie memorandum. Due to his deployment he came under increasing financial stress and submitted fictitious receipts to support his family. His conviction was the only incident where he was disciplined. Since his discharge he has earned a bachelor's degree, created a program to inspire at-risk youth, and formed a program that provides services to veterans. The applicant served his country with distinction for 18 years including multiple deployments and received numerous awards. In a records review conducted on 10 September 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 a. Date of Discharge: 25 January 2010 b. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order (SCMO) Number 3, dated 28 August 2008, the applicant was found guilty of stealing US currency of a value of about $13,356 on divers occasions between on or about 1 September 2005 and 31 January 2007; on divers occasions between 1 September 2005 and 31 January 2007, presenting fraudulent travel vouchers to the Defense and Accounting Service in an amount greater than $500.00; and on divers occasions, for the purpose of obtaining the payment of claims against the U.S. in an amount greater than $500.00, between on or about 1 September 2005 and 31 January 2007, use certain papers which were false and fraudulent. (2) Adjudged Sentence: 19 May 2008; To be reduced to the grade of E-1, forfeiture of $898.00 pay per month for 4 months; to be confined for 4 months; and to be discharged from the service with a Bad Conduct discharge. (3) Date Sentence Approved: 28 August 2008, except for that part of the sentence extending to a bad conduct discharge, would be executed. (4) Appellate Review: The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence on 26 June 2009. (5) Date Sentence of BCD Ordered Executed: 6 November 2009 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 November 2005 / NIF b. Age at Enlistment / Education / GT Score: 33 / NIF / NIF c. Highest Grade Achieved / MOS / Total Service: E-7 / 71L, Administrative Specialist / 2 years, 7 months, 23 days d. Prior Service / Characterizations: RA, 31 August 1989 - 17 March 1996 / HD USAR, 19 May 1996 - 16 January 1997 / HD USAR, 5 October 1997 - 1 April 1998 / HD USAR, 13 April 1998 - 25 September 1998 / HD USAR, 31 May 2000 - 27 September 2000 / HD USAR, 6 January 2000 - 27 April 2000 / HD USAR, 15 October 2000 - 23 March 2001 / HD USAR, 16 November 2001 - 2 March 2002 / HD e. Overseas Service / Combat Service: Bosnia, Germany / Bosnia 18 June 1996 - 29 December 1996 f. Awards and Decorations: ARCOM, AFSM, NDSM, ALP, AGCM-2, NDSM, ASR, OSR- 3 Expert Marksmanship Qualification Badge-Hand Grenade, AFRM-M Device g. Performance Ratings: November 2001 - March 2002 / Fully Capable April 2002 - March 2003 / Fully Capable April 2003 - March 2004 / Fully Capable April 2004 - July 2004 / Among The Best August 2004 - July 2005 / Fully Capable August 2005 - May 2006 / Among The Best 1 June 2006 - 22 February 2007 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: SPCMO as described in paragraph 3c. i. Lost Time / Mode of Return: Confinement x 101 days, 19 May 2008 - 28 August 2008 j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149, Counsel's Memorandum in Support of Application for Review of Discharge, Official Military Personnel File from the Nation Personnel Records Center, applicant's statement, Letters of Recommnedation-4, Wilkie Memorandum (430 total pages). 6. POST SERVICE ACCOMPLISHMENTS: The applicant's counsel states the applicant he has earned a bachelor's degree, created a program to inspire at-risk youth, and formed a program that provides services to veterans. 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) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (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) Chapter 3, 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. (5) 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. (6) 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. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable or general (under honorable conditions) and a narrative reason change. 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's counsel contends the applicant's discharge should be upgraded based on his exemplary post-separation conduct and the non-violet nature of his misconduct. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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's counsel also contends due to the applicant's deployment the applicant came under increasing financial stress and submitted fictitious receipts to support his family. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct, which led to the separation action under review. The applicant's counsel further contends the applicant's conviction was the only incident where he was disciplined. The applicant's discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, 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's counsel states that the applicant served his country with distinction for 18 years including multiple deployments and received numerous awards. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The applicant's counsel requests the applicant's narrative reason be changed. The applicant was separated under the provisions AR 635-200, Chapter 3, with a bad conduct discharge. The narrative reason specified by Army Regulations for a discharge under this chapter is "Court- Martial, Other," and the separation code is "JJD." Army Regulation 635-5-1, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The third party statements provided with the application speak highly of the applicant's character. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference 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. In reference to counsel's request for pre-decisional documents, it is not the practice of the Army Review Boards Agency to provide pre-decisional documents prior to adjudication. Once the case has been adjudicated, the applicant and counsel will be provided a copy of the final decision. 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? Yes. Under Liberal Consideration, applicant's in-service diagnosis of Adjustment Disorder and GAD are potentially mitigating depending upon the misconduct. (2) Did the condition exist or experience occur during military service? Yes. Applicant was diagnosed with Adjustment Disorder and GAD while in the service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. Applicant's in-service BH conditions do not mitigate the offense of stealing money for two reasons: 1) None of these conditions prevent an individual from understanding the difference between right and wrong; 2) The applicant's actions while stealing the money required long-term planning and deliberate efforts to hide the theft of money from others. Such behavior indicates premeditation which, under the Kurta Memorandum, is not mitigated by Liberal Consideration. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's multiple offenses of larceny outweighed the applicant's AD and GAD diagnoses, because they required premeditation and planning. b. Response to Contention(s): (1) The applicant's counsel seeks relief contending, in effect, the applicant's discharge should be upgraded based on his exemplary post-separation conduct, the non-violet nature of his misconduct, and based on guidance issued by the Wilkie memorandum. The applicant is commended for his post-service efforts. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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 Board considered the non-violent nature of the discharge and the Wilkie memorandum, but determined that the premediated efforts to commit larceny numerous times outweighed the applicant's AD and GAD diagnoses. (2) Due to his deployment he came under increasing financial stress and submitted fictitious receipts to support his family. The Board determined committing fraud is not an acceptable response to financial stress. The applicant had other valid sources of assistance available, but did not find evidence in the AMHRR he reached out for any of those agencies. (3) His conviction was the only incident where he was disciplined. The Board carefully considered this contention. The Special Court Martial Order 3, dated 28 August 2008, indicates that the applicant committed, "on divers occasions between on or about 1 September 2005 and 31 January 2007," (1) acts of larceny and wrongful appropriation, and (2) frauds against the United States. The ADRB found despite the fact there was only one encompassing disciplinary act, it was for a series of misconduct spanning well over a year, and costing the US Government over $13,000. (4) Since his discharge he has earned a bachelor's degree, created a program to inspire at-risk youth, and formed a program that provides services to veterans. The applicant is commended for his post-service efforts. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. (5) The applicant served his country with distinction for 18 years including multiple deployments and received numerous awards. The Board recognizes and appreciates the applicant's willingness to serve and carefully considered this contention during board proceedings. However, the ADRB determined that the applicant's discharge was proper and equitable despite the long service. An Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. The Board did not find the applicant's service met these criteria. Further, 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. Due to the long period of misconduct, the ADRB also found the applicant's service did not warrant a General discharge. 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, the applicant's Adjustment Disorder and Generalized Anxiety Disorder did not mitigate the offenses of larceny by submitting false documentation for reimbursement. 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 voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, as 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. 10. 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 AR20190007815 1