1. Applicant’s Name: a. Application Date: 13 November 2019 b. Date Received: 2 December 2019 c. Counsel: Yes 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 through legal counsel requests an upgrade to honorable and a change to the reentry eligibility (RE) code to 1. The applicant seeks relief contending, in effect, that the Army makes mistakes; the Army pays people too much, too little, or not at all. The Army is audited and investigated yet makes no effort to change. The Army doesn’t follow protocol or procedures or rules, yet no one is accountable except for the applicant who is the SCAPEGOAT for an entire unit’s command failure for the accountability for their pay. The applicant made repeated attempts to fix the overpayment problem but was turned away by the chain of command numerous times. The applicant served honorably for over 13 years, proving commitment and value to the US military. When the Army finally realized its own mistake, the applicant did not fight the issue, like the principled, ethical man that the applicant was, rather than request a waiver since coming forward and informing the command of the overpayment, the applicant offered to pay the money back. For over 13 months, the applicant performed drill and AT periods, yet was not paid for any of them. The applicant believes this entire situation was due to no fault of the applicant, but the Army unjustly held the applicant accountable as the scapegoat rather than the unit who failed to conduct proper oversight even after they were informed of the error by the applicant. The applicant contends the discharge was improper, immoral, and unjust and requests the discharge be corrected to honorable, with an RE Code of 1 for reenlistment. b. Board Type and Decision: In a records review conducted on 24 August 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: Acts or Patterns of Misconduct Under the UCMJ, State Military Code or Similar Laws / NGR 600-200, paragraph 6-35i(1) / NIF / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 19 October 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 June 2010 (2) Basis for Separation: The applicant was informed of the following reasons: for the wrongful receipt, allocation, and theft of United States Government Funds and failure to obey an order or regulation. (3) Recommended Characterization: Under Other Than Honorable Conditions. The intermediate commanders recommended a characterization of service of general (under honorable conditions). (4) Legal Consultation Date: On 28 June 2010, the applicant acknowledged receipt of the notification for separation proceedings under AR 135-178, Chapter 12, dated 12 June 2010. The applicant exercised his right and request a hearing before an Administrative Separation Board. (5) Administrative Separation Board: On 13 April 2011, the applicant was referred to a Board for a hearing by Memorandum on 13 April 2011 and amended 4 June 2011 and 6 July 2011. On 10 July 2011, the applicant along with legal counsel appeared before the board. The Board having considered all evidence before it found that the applicant engaged in serious misconduct, violation of Article 121: Larceny, guilty of withholding pay and allowances and that he was unqualified for further military service. The Board recommended that the applicant be separated from the service and that the discharge be suspended for 12 months. It was also recommended that the applicant be furnished a General Under Honorable Conditions Discharge certificated as the applicant’s overall record warrant this characterization. (6) Separation Decision Date / Characterization: On 18 October 2011 the separation authority following review of the Board proceedings and following review of the recommendations, determined that the applicant would be separated with a characterization of service of General (Under Honorable Conditions). 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 February 2005 / NIF b. Age at Enlistment / Education / GT Score: 34 / HS Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-4 / 12B10, Combat Engineer / 13 years, 5 months, 22 days d. Prior Service / Characterizations: ARNG, 10 April 1990 to 8 May 1990 / NA ADT, 9 May 1990 to 16 August 1990 / UNC ARNG, 17 August 1990 to 3 September 1991 / NA USARCG, 4 September 1991 to 17 March 1994 / NA ARNG, 18 March 1994 to 23 January 1996 / GD USARCG, 24 January 1996 to 9 April 1998 / NA (Break-in-Service) ARNG, 12 February 2000 to 11 February 2001 / HD (Break -in-Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: ARCAM, NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Orders 292-035, dated 19 October 2011, reflects the applicant was discharged from the Army National Guard and as a Reserve of the Army, effective 19 October 2011. It should be noted the authority was 6-35i (1) of National Guard Regulation 600-200. Letter submitted by the applicant with the application indicates; On 12 August 2015, The Adjutant General (TAG), ARNG of the State of Florida, indicated in a letter to the Army Review Boards Agency, Case Management Division, that having reviewed the applicant’s records and petition, The Adjutant General (TAG), ARNG declined to grant the applicant the relief sought through the administrative avenue. The Adjutant General (TAG), ARNG believed that the applicant was properly discharged with the appropriate characterization of service. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Decision letter from the Florida National Guard Office of the Adjutant General; DD Form 293; legal brief; DD Form 214 for a prior period of Active Duty service; Report of Proceedings by Investigating Officer/Board of Officers and supporting documents; Article on Military Pay (Army National Guard Personnel Mobilized to Active Duty Experienced Significant Pay Problems) from the United States General Accounting Office; discharge orders; several letters of support; and NGB Form 22 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 135-178 sets forth the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. (1) Paragraph 2-7 prescribes possible characterizations of service include an honorable, general (under honorable conditions), under other than honorable conditions, or uncharacterized if the Soldier is in entry-level status. However, the permissible range of characterization varies based on the reason for separation. (2) Paragraph 2-8, prescribes the characterization is based upon the quality of the Soldier’s service, including the reason for separation, and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization. e. National Guard Regulation (NGR) 600-200 and Army Regulation (AR) 135-91 govern procedures covering enlisted personnel management of the Army National Guard. Chapter 6 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard. 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-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: 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 through legal counsel requests an upgrade to honorable and a change to the reentry eligibility (RE) code to 1. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of record indicates separation action was initiated against the applicant for the wrongful receipt, allocation, and theft of United States Government Funds and the failure to obey an order or regulation. The applicant was separated under the provisions of Chapter 6, paragraph 6-35i(1), NGR 600- 200 with a general (under honorable conditions) discharge. The applicant seeks relief contending, in effect, that the Army makes mistakes; the Army pays people too much, too little, or not at all. The Army is audited and investigated yet makes no effort to change. The Army doesn’t follow protocol or procedures or rules, yet no one is accountable except for the applicant who is the SCAPEGOAT for an entire unit’s command failure for the accountability for their pay. The applicant made repeated attempts to fix the overpayment problem but was turned away by the chain of command numerous times. The applicant served honorably for over 13 years, proving commitment and value to the US military. When the Army finally realized its own mistake, the applicant did not fight the issue, like the principled, ethical man that the applicant was, rather than request a waiver since coming forward and informing the command of the overpayment, the applicant offered to pay the money back. For over 13 months, the applicant performed drill and AT periods, yet was not paid for any of them. The applicant believes this entire situation was due to no fault of the applicant, but the Army unjustly held the applicant accountable as the scapegoat rather than the unit who failed to conduct proper oversight even after they were informed of the error by the applicant. The applicant contends the discharge was improper, immoral, and unjust and requests the discharge be corrected to honorable, with an RE Code of 1 for reenlistment. The applicant’s contentions were noted; however, as noted in the document submitted by the applicant from the Office of The Adjutant General, dated 12 August 2015, the applicant’s request for relief was declined because it is believed that the applicant was properly discharged with the appropriate characterization of service. The Army Military Human Resource Record (AMHRR) record of service indicates e the applicant was found to have wrongfully received the money over the course of a year, and that the money belonged to the Army and the applicant spent that money. The Investigating Officer found the same, so much so the Investigating Officer recommended the case be forwarded to CID and the US Attorney. The only reason the applicant was not prosecuted in the Florida National Guard (FLNG) was (as stated in the AR 15-6) that the applicant took Title 10 money from DFAS in Indianapolis through a Commander in North Carolina while he was a resident of North Carolina. It was not believed that Florida has criminal jurisdiction. Evidence indicates the applicant wrongfully obtained over $3,000.00 dollars a month for a year. As stated by the TAG, the FLNG had only one intention, to uphold the Army Values. The money did not belong to the FLARNG, but the applicant did. It should also be noted; Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. The evidence of record shows the applicant was assigned an RE code of 3. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. The Board’s Medical Advisor, a voting member, reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. 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 excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant seeks relief contending that the Army makes mistakes and he made repeated attempts to fix his overpayment problem. The Board considered this contention and determined the applicant did not provide supporting documentation to provide merit to the claim. Ultimately, the Board decided that the assertion alone did not outweigh the basis of separation due to the severity of the offenses and found no evidence of the Command acting arbitrarily or capriciously. In this case, the Board determined the discharge was proper and equitable. c. The Board determined 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 has no BH diagnoses to excuse or mitigate the offenses of wrongful receipt, allocation, and theft of United States Government Funds and failure to obey an order or regulation. 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, 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 AR20200002049 1