1. Applicant’s Name: a. Application Date: 18 February 2020 b. Date Received: 20 February 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable, a narrative reason and service date change, and assistance with resolving a debt. The applicant seeks relief contending, in effect, the 311th Sustainment Command (Expeditionary) (ESC) used the wrong Separation Board Procedural Guide (TPU Enlisted Personnel). The administrative separation board used the incorrect Army Regulation (AR) 135- 178, which is used for TPU enlisted personnel and not for Active Guard Reserve (AGR) Soldiers. The applicant should have been separated under Army Regulation 635-200. At no time during the administrative separation board proceedings did the board refer to the proper AR 635-200, but instead referred to AR 135-178. This was a violation of the applicant’s rights. The applicant has been fighting for retirement since January 2015 with the applicant’s old unit 250th Transportation Company in South El Monte, California and the 311th ESC. The unit personnel informed the applicant, the applicant was not entitled to retirement. The applicant reached out to various service organizations and did not receive any assistance. The applicant served in the Army for 34 years. The applicant served in Germany for at least 18 years and in Iraq for a year. While serving in Iraq, the applicant suffered a head injury, resulting in a traumatic brain injury. The applicant also suffered from post-traumatic stress disorder, but at the time, the applicant did not receive any help. The applicant returned to the United States and in 2010, the applicant was on the way home from the base in California and was involved in a motorcycle accident. The applicant was informed the applicant died three times because of the accident. While serving in California in 2012, the applicant removed items from the Army base, and was caught. The local county police department was called instead of the police on base. After the applicant was arrested, the applicant assisted the police with retrieving the items the applicant stole. The applicant stole the items because the applicant’s spouse was going through some health issues and was prescribed marijuana, which the applicant’s family could not afford. The applicant’s stepchild was having treatments for cancer, and the child had no health insurance. Following this, the applicant decided to seek help for PTSD. The mental evaluation the applicant received for the separation board stated the applicant’s actions resulted from PTSD and TBI. The Human Resources Command (HRC) informed the applicant since the applicant had served over 20 years in the Army, the applicant should not have been discharged from the service. The HRC instructed the applicant’s command to submit the applicant’s retirement documents to HRC, but the documents were never submitted. The applicant has been recently informed the applicant’s health issues are from the motorcycle accident the applicant had in 2010, which resulted in a brain injury. The applicant is pending approval for a wheelchair ramp, a motorized wheelchair, and a wheelchair accessible shower. The applicant applied for assistance through the Department of Veterans Affairs (VA). The applicant further details the contentions in the application and self-authored statements submitted with the application. b. Board Type and Decision: In a records review conducted on 10 February 2023, and by a 5 -0 vote, the Board denied the request upon finding the accepted basis for separation – felony burglary – 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: 16 December 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 April 2009 / Indefinite b. Age at Enlistment / Education / GT Score: 49 / 1 Year College / 111 c. Highest Grade Achieved / MOS / Total Service: E-7 / 88M40, Motor Transport Operator / 36 years, 4 months, 16 days d. Prior Service / Characterizations: RA, 1 August 1978 – 1 February 1981 / HD RA, 2 February 1981 – 16 June 1986 / HD RA, 17 June 1986 – 31 August 1992 / HD USAR, 1 September 1992 – 6 February 1993 / NIF USARCG, 7 February 1993 – 1 March 1993 / NA ARNG, 2 March 1993 – 31 August 1995 / HD ING, 1 August 1994 – 31 August 1995 / NA (Concurrent Service) USARCG, 1 September 1995 – 23 August 1996 / NA USAR, 24 August 1996 – 11 July 1998 / NIF USAR, 12 July 1998 – 21 February 2007 / NIF AD, 11 February 2003 – 10 February 2004 / HD (Concurrent Service) USAR, 22 February 2007 – 26 April 2009 / NA e. Overseas Service / Combat Service: Germany, SWA / Iraq-Kuwait (17 February 2004 – 19 February 2005); Kuwait (12 April 2003 – 4 July 2003) f. Awards and Decorations: AAM-3, AGCM-3, ARCAM, NDSM-BSS, GWOTEM, GWOTSM, NCOPDR-2, ASR, OSR-5, AFRM-MD / The applicant’s AMHRR reflects award of an MSM, MOVSM, AGCM-5; however, the awards are not reflected on the most recent DD Form 214. g. Performance Ratings: 1 March 2009 – 28 February 2010 / Fully Capable 1 March 2010 – 28 February 2011 / Fully Capable 1 March 2011 – 28 September 2014 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “PDY,” to “Confined by Civil Authorities (CCA),” effective date 3 December 2012; and From “CCA” to “PDY,” effective date 14 January 2013. The applicant provided Trial Defense Service (TDS) memorandum to Judge S. S., dated 1 October 2012, reflecting the applicant defense counsel requested a delay in the commencement of the applicant confinement until the administrative separation board was complete. Counsel indicated the separation process was initiated on 10 May 2012 and the basis for the separation was the same theft for which the applicant pled nolo contendere in the judge’s courtroom on 6 July 2012. The one-year sentence of confinement was to commence on 22 October 2012. The applicant provided TDS memorandum, dated 31 January 2013, reflecting the applicant’s defense counsel requested the administrative separation board convening authority disapprove the findings of the administrative separation board held 30 November 2012, and retain the applicant in favor of medical processing through an approved medical retirement. The defense counsel contended the board used the incorrect regulation to guide the proceedings and the applicant was denied the right to make an unsworn statement. The applicant provided electronic mail (email) discussions dated from 25 March 2013 to 29 April 2013, between HRC, Retirements and Separations Branch, the applicant, the command judge advocate, and other personnel in the command. The HRC Retirements and Separations Branch indicated the applicant was not eligible for separation under AR 635-200, Chapter 14 because the applicant had a prior MEB awarding the applicant 60 percent disability. The HRC indicated the information was confirmed by the Physical Disability Agency. The applicant provided email communications, dated 5 March 2014, between G. G, Administrative Officer, 79th Sustainment Support Command and the applicant’s unit of assignment indicating Army G1 was requesting the applicant’s retirement packet as part of the adverse administrative packet for review. The applicant provided Application for Voluntary Retirement form, undated, reflecting the applicant requested retirement with a desired retirement date of 1 May 2014. The applicant’s company commander recommended approval. The applicant provided a Personnel Action form, dated 12 March 2014, reflecting the applicant requested transfer to the Retired Reserves immediately. The applicant’s immediate commander, battalion commander, and brigade commander recommended approval. Army Human Resources Command Orders 267-0041, dated 1 December 2014, reflect the applicant was to be reattached to the Commander, Fort Irwin from the Headquarters and Headquarters Sustainment, 304th CS Brigade, for separation processing and to be discharged on 16 December 2014 from the Army Reserve Active Guard Reserve. The applicant’s DD Form 214, reflects the applicant had completed the first full term of service. The applicant was discharged under the authority of AR 635-200, paragraph 14-12c, with a narrative reason of Misconduct (Serious Offense). The DD Form 214 was not authenticated with the applicant’s signature. The applicant provided a copy of a letter from the U.S. Department of the Treasury, Bureau of the Fiscal Service, dated 3 February 2020, reflecting the applicant was indebted to the Defense Finance and Accounting Service. The letter indicated 15 percent of the applicant’s Social Security benefit payment would be withheld beginning no sooner than April 2020. The applicant provided State of California Order for Dismissal, dated (day illegible) November 2020, reflecting the court granted the applicant’s petition for dismissal regarding the conviction under Penal Code 1203.4., for all convictions or pleas for deferred entry of judgment. The applicant provided the State of California Court printout, dated 15 January 2021, reflecting: On 24 April 2012, a case was filed against the applicant for six felony charges (burglary). The applicant was assigned a public defender. The applicant was arraigned and plead not guilty. The bail was set at $50,000. On 6 July 2012, the applicant case went to trial and the applicant changed the pleas to nolo contendere. The applicant was found guilty of counts one, two, and three in the second degree; counts four, five, and six were dismissed because of plea negotiations. Restitution was to be determined by probation and the military. On 3 December 2012, the applicant was sentenced to probation for 3 years; 365 days in jail; and to pay restitution in the amount of $240. The applicant was credited with 21 days credit towards the sentence to confinement. The applicant was placed on probation and the imposition of the sentence was suspended. On 24 March 2015, the court granted the applicant’s request for reduction of charges to a misdemeanor and early termination of probation. On 8 December 2020, the court granted the applicant’s petition for dismissal of charges. A plea of not guilty was entered; the findings of guilty were set aside and vacated; and the charges were dismissed. i. Lost Time / Mode of Return: None / CCA for 43 days, 3 December 2012 to 14 January 2013. This period is not annotated on the DD Form 214 block 29. j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided Report of Medical Examination, dated 24 October 2011, the examining medical physician noted in the summary of defects and diagnoses section: PTSD/TBI. Physical Evaluation Board (PEB) Proceedings, dated 6 April 2012, reflect the following diagnosis: Post-traumatic disorder; cervicalgia, evaluated as degenerative arthritis; and degenerative arthritis, listed as low back pain, were found to be physically unfit and the PEB recommended a combined rating of 60 percent disability and the applicant be placed on the temporary disability retired list for reexamination during January 2013. The PEB determined the diagnosis: Left patellofemoral syndrome; obstructive sleep apnea; gastroesophageal reflux disease; ventral hernia; restless leg syndrome; and post-concussion syndrome, mild, met retention standards. The applicant concurred with the decision and waived a formal hearing. The applicant provided Report of Mental Status Evaluation, dated 5 July 2012, reflecting the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant was determined to be unfit because of a serious mental condition, which was not likely to resolve within one year. The applicant had been screened for PTSD and mTBI with positive results. It was likely the applicant would require long-term; lifetime treatment related to the behavioral health conditions. It was probable the applicant’s legal problems were influenced by the applicant’s TBI. The applicant was diagnosed with: Adjustment disorder with anxiety and depressed mood; PTSD, chronic, moderate; TBI- mild, 2010; and multiple medical problems. The applicant report being in the MEB process. The applicant provided VA letter, dated 8 October 2019, reflecting the applicant was rated service-connected disability for: Traumatic brain injury with adjustment disorder, anxiety, and depression / 70 percent Post-traumatic stress disorder with insomnia / 70 percent Migraine headaches / 50 percent Diabetes mellitus type II / 20 percent Right knee degenerative arthritis / 10 percent Tinnitus / 10 percent Bilateral hearing loss / 0 percent The applicant provided a copy of the Department of Veterans Affairs (VA) letter, dated 6 July 2022, reflecting a physician believed the applicant’s current C3 Asia D incomplete quadriplegia with ataxia, neurogenic bladder, persistent cervicalgia and headaches were as likely as not related to the applicant’s original injuries to head and neck sustained during a fall and a subsequent motorcycle accident, both of which occurred while on active duty service, predisposed the applicant to more severe problems with later injuries. The applicant provided a copy of VA letter, undated, reflecting the applicant had past diagnoses PTSD; bipolar disorder, unspecified, most recent episode – depressed; obstructive sleep apnea; insomnia; history of TBIs and transient ischemic attacks (TIAs). The applicant was receiving care at the VA Medical Center for the listed diagnoses. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 149, with all listed enclosures 1 to 15; congressional documents with multiple self-authored statements; California court documents; numerous character references; medical documents; and letter regarding spousal access to information. 6. POST SERVICE ACCOMPLISHMENTS: The applicant attends church and strives to be a better person every day. 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), 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) 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. (5) 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. (6) Paragraph 14-12c prescribes 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 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). 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 waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-3 Applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 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, a narrative reason and service date change, and assistance with resolving a debt. The applicant’s Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant’s AMHRR is void of the complete facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated with the applicant’s signature. The applicant’s DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of general (under honorable conditions). The applicant contends the narrative reason for the discharge should be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Serious Offense),” and the separation code is “JKQ.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends TBI, PTSD affected behavior which ultimately led to the discharge. The applicant provided several medical documents indicating, among other conditions, diagnoses of TBI and PTSD by the VA and the applicant was rated 70 percent service-connected disability for each of the conditions. The AMHRR shows the applicant underwent a physical evaluation board (PEB) on 6 April 2012, which reflects the applicant was found medically unfit for PTSD; cervicalgia; and degenerative arthritis. The PEB recommended a combined rating of 60 percent disability and the applicant be placed on the temporary disability retired list. The applicant underwent a mental status evaluation (MSE) on 5 July 2012, which indicates the applicant was mentally responsible and recognized right from wrong. The applicant had been screened for PTSD and mild TBI with positive results. It was probable the applicant’s legal problems were influenced by the applicant’s TBI. The applicant was diagnosed with: Adjustment disorder with anxiety and depressed mood; PTSD, chronic, moderate; TBI-mild, 2010; and multiple medical problems. The applicant report being in the MEB process. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends the administrative separation board violated the applicant’s rights by relying on Army Regulation 135-178 instead of Army Regulation 635-200 to conduct the board. The applicant provided a notification to appear before a board of inquiry (administrative separation board), which would determine whether the applicant should be discharged under AR 635-200, Chapter 14-12c. The applicant’s defense counsel reported the board referred to AR 135-178 during the proceedings. The AMHRR is void on the board’s record of proceedings nor was a copy of the record provided by the applicant for review. The applicant contends the command failed to forward the applicant’s retirement packet to HRC as HRC instructed. The applicant provided an application for retirement which reflects the applicant’s company commander, battalion commander, and brigade commander recommended approval. The applicant provided email communications showing HRC requested the applicant’s retirement packet for review with the applicant’s administrative separation proceedings. Army Regulation 635-200 provides when board action is completed on a Soldier with over 18 years of service, the findings, and recommendations of the board, with complete documentation and the recommendation of the convening authority, will be forwarded to HRC, for final determination when the convening authority recommends discharge. A Soldier who has completed 20 or more years of active service creditable toward retirement and for whom separation is recommended to HQDA will be given the opportunity of applying for retirement. The Soldier will be told that authority to submit the application does not assure that it will be approved. The applicant contends harassment by members of the chain of command and the command intentionally delayed the administrative board proceedings. The applicant provided statements from the applicant’s defense counsel, at the time, and third-party statements in support of the applicant’s contentions. The applicant contends good service, including two combat tours. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good military service and good conduct after leaving the Army. The applicant contends service dates on the DD Form 214, block 12a needs to be corrected. The applicant’s requested change to the DD Form 214 does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. The applicant contends funds were being wrongfully deducted from the applicant’s Social Security benefits for a debt to DFAS. The applicant’s request does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR). The applicant contends attending church and striving to be a better person every day. 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 applicants AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command 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 the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Dysthymic Disorder, Bereavement, Adjustment Disorder, PTSD, Depressive Disorder, and Anxiety Disorder, TBI with MST noted. . (2) Did the condition exist, or experience occur during military service? Yes. The applicant held in-service diagnoses of Dysthymic Disorder, Bereavement, Adjustment Disorder, PTSD, Depressive Disorder, and Anxiety Disorder. The applicant is service-connected for PTSD, TBI with MST noted. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the diagnoses and MST do not mitigate burglary. Specifically, burglary is not a natural progression or sequela of trauma. Moreover, the applicant was not diagnosed with TBI in-service and found competent via two Chapter MSEs and PEB proceedings; irrespective of diagnoses, the applicant was determined to have mental capacity. Furthermore, documentation contains the applicant’s self-report which reflects pre-meditation with clear, purposeful decision-making processes accompanied by justification and planned out steps executed over time with evasive measures. This reflects intact cognitive processes. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s Dysthymic Disorder, Bereavement, Adjustment Disorder, PTSD, Depressive Disorder, and Anxiety Disorder, TBI with MST noted did not outweigh the basis for applicant’s separation – felony burglary. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention but determined that there were insufficient mitigating circumstances which could outweigh the offense, even after considering the applicant’s diagnosed conditions and the totality of the applicant’s service record were considered. (2) The applicant contends TBI, PTSD affected behavior which ultimately led to the discharge. 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 considered this contention and determined that the applicant’s conditions did not mitigate nor outweigh the applicant’s misconduct for the reasons stated in section 9a(3), above. (3) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention but determined that the Army has many legitimate avenues available to service members requesting assistance with family issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant stealing unit equipment to sell is not an acceptable response, thus the applicant was properly and equitably discharged. (4) The applicant contends the administrative separation board violated the applicant’s rights by relying on Army Regulation 135-178 instead of Army Regulation 635-200 to conduct the board. The Board considered the applicant contention and voted that the merit of this contention cannot be determined without knowing the complete facts and circumstances surrounding the discharge, which are not available in official records and were not provided by the applicant. The Board found applicant was discharged under the proper authority for the applicant’s characterization from service. (5) The applicant contends the command failed to forward the applicant’s retirement packet to HRC as HRC instructed. The Board considered this contention and determined that the applicant provided no documents or testimony from chain of command stating the chain of command failed to forward the applicant’s retirement packet to HRC as HRC instructed. The Board found, contradictory to the contention, that HRC denied the application for retirement and instead instructed the applicant to report to Fort Irwin for courts martial. (6) The applicant contends harassment by members of the chain of command and the command intentionally delayed the administrative board proceedings. The Board considered this contention but determined that the Army has many legitimate avenues available to service members requesting assistance with harassment, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant stealing unit equipment to sell is not an acceptable response, thus the applicant was properly and equitably discharged since the felony burglary cannot be explained by a delay in paperwork. (7) The applicant contends good service, including two combat tours. The Board considered the totality of the applicant’s service record but 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 the misconduct of burglary, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (8) The third-party statements provided with the application speak highly of the applicant. The Board considered this contention but determined that the evidence did not outweigh the severity of the applicant’s offenses. (9) The applicant contends service dates on the DD Form 214, block 12a needs to be corrected. The Board determined that the applicant’s requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans’ Service Organization. (10) The applicant contends funds were being wrongfully deducted from the applicant’s Social Security benefits for a debt to DFAS. The Board considered this contention but determined that the applicant’s request does not fall within the purview of the ADRB. The issue raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge when it was issued. (11) The applicant contends attending church and striving to be a better person every day. 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. 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. In this case, the Board considered this contention and determined that the applicant misconduct of burglary. After considering the totality of the applicant’s record, the Board voted that no relief is warranted. c. The Board determined that the discharge is, at this time, proper and equitable, considering 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 Dysthymic Disorder, Bereavement, Adjustment Disorder, PTSD, Depressive Disorder, and Anxiety Disorder, TBI with MST noted did not mitigate nor outweigh the applicant’s felony burglary charge for the reasons stated in section 9a(3), above. 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 AR20200001839 1