1. Applicant’s Name: a. Application Date: 14 June 2019 b. Date Received: 31 July 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant would like an upgrade of the discharge for the opportunity of being able to go back to school. The applicant wants to make a better future for the family. The upgrade is the key to a successful future and the current discharge received does not allow the opportunity for reaching that goal. In a records review conducted on 13 July 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 22 May 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 April 2017 (2) Basis for Separation: The applicant was informed of the following reasons: for on or about 16 August 2016, conspired with PV1 D.S., to commit larceny of three pairs of Beats by Dr. Dre headphones of a value of more than $500.00; On or about 10 September 2016, conspired with PV1 D.S., to commit larceny of two pairs of Beats by Dr. Dre headphones, of a value of more than $500.00; On or about 14 September 2016, with intent to deceive, made to Staff Sergeant B.T.C., and official statement, to wit: “I only stole the Beats Studio headphones from the BX” or words to that effect, which statement was totally false, and was then known by the applicant to be so false; On or about 14 September 2016, with intent to deceive, made to Staff Sergeant B.T.C., and official statement, to wit: “I did not go to the BX on 10 September 2016” or words to that effect, which statement was totally false, and was then known by the applicant to be so false; On or about 17 May 2016, with the intent to deceive, made to Staff sergeant R.B., and official statement, to wit: “My passport and order were cut up by my child, and the garbage was cleaned up by my wife and taken away by the garbage men” or word to that effect, which statement was totally false, and was then known by the applicant to be so false; and On or about 17 May 2016, through neglect, missed the movement of B Co, 3d Battalion, 5th Special Forces Group (Airborne) with which the applicant was required in the course of duty to move (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 13 April 2017 (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: 28 April 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 April 2014 / 3 years, 26 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92F1P, Petroleum Supply Specialist / 3 years, 1 month, 9 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Turkey / None f. Awards and Decorations: NDSM, GWOTEM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Department of the Air Force Report of Investigation, dated 10 September 2016, which indicates the applicant was the subject of investigation for violation of Article 78, Conspiracy, a violation of Article 81, UCMJ, Larceny, a violation of Article 121, UCMJ, and Making a False Official Statement, a violation of Article 107, UCMJ. FG Article 15, dated 24 January 2017, for having conspired with SPC D.S., on 16 August 2016 to commit an offense under the Uniform Code of Military Justice, to wit: larceny of one pair of Beats by Dr. Dre Beats Studio headphones and two pairs of Beats by Dr. Dre Beats Solo 2 Wireless headphones, of a value of about $809.85, the property of the Incirlik Air Base Main Store Base Exchange, and in order to effect the object of the conspiracy, the applicant did steal one pair of Beats by Dr. Dre Beat’s Studio headphones and SPC S., did steal two pairs of Beats by Dr. Dre Beats Solo 2 Wireless headphones; Stealing one pair of Beats by Dr. Dre Beats Studio headphones, of a value of about $249.95, the property of the Incirlik Air Base Main Store Base Exchange on 16 August 2016; Conspired with SPC L.B., to commit an offense under the UCMJ, to wit: larceny of one Beats by Dr. Dre Beats Pill wireless speaker and one pair of Beats by Dr. Dre Beats Solo 2 Wireless headphones, of a value of about $489.90, the property of the Incirlik Air Base Main Store Base Exchange, and in order to effect the object of the conspiracy, the applicant did steal one Beats by Dr. Dre Beats Pill wireless speaker and SPC B., did steal one pair of Beats by Dr. Dre Beats Solo 2 Wireless headphones on 9 September 2016; Stealing one Beats by Dr. Dre Beats Pill wireless speaker of a value of about $209.95, the property of the Incirlik Air Base Main Store Base Exchange on 9 September 2016; Conspiring with SPC D.S., to commit an offense under the UCMJ, to wit: larceny of one pair of Beats by Dr. Dre Beats Studio headphones and on pair of Beats by Dr. Dre Beats Solo 2 wireless headphones of a value of about $529.90, the property of the Incirlik Air Base Main Store Base Exchange and in order to effect the object of the conspiracy, the applicant did steal one pair of Beats by Dr. Dre Beats Studio headphones and SPC S, did steal on pair of Beats by Dr. Dre Beats Solo 2 Wireless headphones on 10 September 2016; Stealing one pair of Beats by Dr. Dre Beats Studio headphones of a value of about $249.95, the property of the Incirlik Air Base Main Store Base Exchange on 10 September 2016; With intent to deceive made to Staff Sergeant B.T.C., and official statement, to wit: “I did not go to the BX on 10 September 2016” or words to the effect, which statement was totally false and was then known by the applicant to be so false on 14 September 2016; and With intent to deceive made to Staff Sergeant B.T.C., an official statement, to wit: “I only stole the Beats Studio headphones from the BX” or words to that effect, which statement was totally false and was then known by the applicant to be so false on 14 September 2016. The punishment consisted of reduction to E-1, forfeiture of $799 per month for two months, extra duty for 45 days, restriction for 45 days (suspended), and an oral reprimand. Report of Mental Status Evaluation, dated 1 February 2017, which indicates the applicant was responsible for his behavior, could distinguish right from wrong and possessed sufficient mental capacity to understand and participate in any administrative or judicial proceedings. The applicant denied any history of suicidality or homicidally, intent, plan, or attempts. The applicant met retention requirements of Chapter 3, AR 40-501 and did not warrant disposition through medical channels or medical administrative actions. The applicant was cleared from a psychological standpoint; therefore, he was cleared for any administrative action as his command deemed necessary. Several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and DD Form 214 for the period of service under review. 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. (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. (5) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (6) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (7) Paragraph 14-12c, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. e. 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-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. f. 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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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 applicant Army Military Human Resource Record (AMHRR) indicates separation action was initiated against the applicant for having at or near Incirlik Air Base, Turkey, on or about 16 August 2016, conspired with PV1 D.S., to commit larceny of three pairs of Beats by Dr. Dre headphones of a value of more than $500.00; on or about 10 September 2016, conspired with PV1 D. S., to commit larceny of two pairs of Beats by Dr. Dre headphones, of a value of more than $500.00; and on 14 September 2016 on two separate occasions, with intent to deceive, the applicant made to SSG B.T.C., official statements which were totally false. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635- 200 with a general (under honorable conditions) discharge. The applicant seeks relief contending, in effect, the applicant would like an upgrade of the discharge for the opportunity of being able to go back to school. The applicant wants to make a better future for the family. The upgrade is the key to a successful future and the current discharge received does not allow the opportunity for reaching that goal. The applicant’s contention was noted; however, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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. 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 reviewed DoD and VA medical records and found the applicant had no mitigating BH diagnoses. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a 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? No. Despite the Board’s application of liberal consideration, the Board concurred with the opinion of the Board’s Medical Advisor that the available evidence did not support a conclusion that the applicant had any conditions that outweighed the basis for applicant’s separation – larceny of three beats headphones and making several false official statements. b. Response to Contention(s): (1) The applicant seeks relief contending that applicant would like an upgrade for the opportunity of being able to go back to school. 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. (2) The applicant contends wanting a better future for applicant and family. The upgrade is the key to applicant’s successful future and the discharge does not allow applicant to better themself. The Board does not grant relief to gain employment or enhance employment opportunities. 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 must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Ultimately, the Board determined that the contention alone did not outweigh the basis of separation due to the severity of the offenses. 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 does not have any BH diagnoses that could excuse or mitigate the offenses of larceny of three beats headphones and making several false official statements. 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 AR20190015662 1