1. Applicant's Name: a. Application Date: 1 August 2019 b. Date Received: 8 August 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is bad conduct discharge. The applicant requests an upgrade to honorable conditions. The applicant seeks relief contending, in effect, applicant's discharge status be upgraded from a bad conduct discharge to honorable for applicant's final enlistment. The applicant states having completed two contracts at full terms of honorable service, and completed four tours to Iraq and Afghanistan. The applicant states their current medical situation requires applicant to have applicant's discharge upgraded to receive disability benefits. In a records review conducted on 6 April 2022, 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 Discharge b. Date of Discharge: 24 July 2014 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 11, dated 23 December 2013, on 9 January 2013, the applicant was found guilty of the following: Charge I, in violation of Article 121: Specification 1: On or about 29 March 2012 and 3 April 2012, steal number of hard drives, super slim DVD portable writers, wireless comfort keyboards, wireless mice, and USB powered portable speakers, military property, of a value of 8,422.52, the property of the U.S. Government. Plea: Guilty. Finding: Guilty Specification 2: On or about 28 March 2012, steal number of canisters of chewing tobacco, military property, of a value less than 500.00, the property of the U.S. Government. Plea: Guilty. Finding: Guilty Specification 3: On or about 1 January 2012 and 26 March 2012, steal number of knife sharpeners, military property, of a value less than 500.00, the property of the U.S. Government. Plea: Guilty. Finding: Guilty (2) Adjudged Sentence: 9 January 2013: Reduction to E-1; to forfeit $1,010 pay per month for six months, to be confined for six months, and to be discharged from the service with a Bad-Conduct Discharge. (3) Date/Sentence Approved: 23 August 2013 / sentence is approved and, except for the portion of the sentence pertaining to a Bad-Conduct Discharge, will be executed. The adjudged and automatic forfeitures were deferred effective 23 January 2013 and that deferment is terminated this date. (4) Appellate Reviews: NIF (5) Date Sentence of BCD Ordered Executed: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 June 2008 / 2 years, b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-5 / 88M10, Motor Transport Operator / 9 years, 00 months, 5 days d. Prior Service / Characterizations: RA, 24 February 2005 - 26 July 2008 / HD e. Overseas Service / Combat Service: SWA / Iraq (8 October 2008 - 9 October 2009); SWA / Afghanistan (20 May 2011 - 22 may 2012) f. Awards and Decorations: AAM-2, ARCOM-3, NCOPDR, OSR-4, ASR, ICM-CS, ACM- CS, AGCM-2, NDSM, GWOTEM g. Performance Ratings: 1 September 2008 - 31 August 2009 / Fully Capable 16 January 2010 - 15 January 2011 / Fully Capable 16 January 2011 - 15 January 2012 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Report of Result of Trial reflects the applicant was tried in a Summary Court-Martial on 9 January 2013. The applicant was charged with five specifications. The summary of offenses, pleas, and findings: Violation of Article 121, Larceny and Wrongful Appropriation: On 29 March 2012 or about 3 April 2012; guilty consistent with the plea; guilty On 28 March 2012; guilty, consistent with the plea; and, guilty On 1 January 2012 and 26 March 2012; guilty, consistent with the plea, guilty Sentence: Forfeiture $1,010 pay per month for 6 months and confinement for 6 months. Confinement Order, reflects the applicant was charged with: Three specifications of violation of Article 121: Larceny The sentenced adjudged: Forfeiture $1,010 pay per month for six months; reduction to E-1; Confined for six months; and, discharge with a Bad Conduct Discharge. i. Lost Time / Mode of Return: 146 days: (Military Confinement), 9 January 2013 - 4 June 2013) j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of a VA disability rating decision, dated 24 March 2016, reflecting the applicant was denied. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; Statement of Service memorandum; VA rating decision letter; copies of military personnel records. 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 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 3-7a 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. (3) 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. (4) 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. 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. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The AMHRR 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 good service for two enlistment contracts of honorable service, including a four combat tour. The applicants service accomplishments and the quality of service will be considered by the board according to the DODI 1332. 28. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits 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. The applicant contends the Veterans Administration has denied a service connection for medical conditions the applicant suffered while on active duty. The available medical evidence in the AMHRR is void of any indication the applicant was suffering from a disabling medical or mental condition during the discharge processing, warranting separation processing through medical channels. 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. The Board's Medical Advisor, a voting member, reviewed DoD and VA medical records, applicant submissions and third party statements, and found the applicant was diagnosed with PTSD, Adjustment Disorder, Anxiety Disorder NOS, and Phase of Life, which, in the opinion of the Board's Medical Advisor, after applying liberal consideration, could potentially mitigate a discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant was diagnosed with PTSD, Adjustment Disorder, Anxiety Disorder NOS, and Phase of Life during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor opined that PTSD does not mitigate the basis of separation. Larceny involves planning and execution over a period of time with attempts to avoid detection, these are not characteristic of trauma reactions and is not a known progression or sequela of PTSD. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant's medical conditions completely outweighed the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends good service for two enlistment contract of honorable service, including a four combat tour. The Board determined the applicant's discharge was appropriate because the quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By committing larceny, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant contends an upgrade of the discharge would allow veterans benefits. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do 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. (3) The applicant contends the Veterans Administration has denied a service connection for medical conditions the applicant suffered while on active duty. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board determined that the available evidence did not support a conclusion that any of the applicant's medical conditions completely outweighed the basis for applicant's separation. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. 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 of all the evidence before the Board, the applicant's PTSD, Adjustment Disorder, Anxiety Disorder NOS, and Phase of Life did not excuse or mitigate the offenses of larceny. 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. 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: 4/16/2022 Presiding Officer, COL, U.S. ARMY Army Discharge Review Board Signed by: SANTIAGO.ARIZMENDI.EDUARDO.1182566205 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 SECRETARIAL REVIEWING AUTHORITY: While the Board found your separation was both proper and equitable; as the Secretarial Reviewing Authority, the Deputy Assistant Secretary of the Army (Review Boards) reviewed the findings, conclusions, and the board's recommendation under the authority of Title 10 United States Code Section 1553(b) and Department of Defense Instruction 1332.28 (Discharge Review Board (DRB) Procedures and Standards), enclosure E3.7.1.1.1. The Deputy Assistant Secretary of the Army (Review Boards) found sufficient evidence to upgrade the characterization of service to Under Other Than Honorable Conditions. Therefore, your DD Form 214 (Certificate of Release or Discharge from Active Duty) will be corrected by issuing you a new DD Form 214 with the updated information.