1. Applicant’s Name: a. Application Date: 13 December 2019 b. Date Received: 16 December 2019 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. The applicant seeks relief contending, in effect, the aspects of the Article 121 charge were completed incorrectly in the Military Police (MP) Report; the charge was listed twice in the Article 15 proceedings when the MP Report only listed one charge; the statement provided would indicate separate crimes were committed and completed at two different times; and the dollar amounts for the items were rounded up making the listed charge inaccurate and a higher offense. The applicant was never advised of the rights or questioned regarding a second theft of knife. The applicant paid more restitution than required to AAFES. The leaders involved threatened other Soldiers with reprisal if they spoke on behalf of the applicant before the Article 15 readings. The discharge was unjust because in the absence of heating equipment, a supervisor, and proper relief in extreme weather conditions, the applicant took measures to keep warm by covering with a blanket and was punished for doing so. The applicant was treated unfairly and impartial because of previously being in trouble. The applicant further details the contentions in an allied self-authored statement provided with the application. b. Board Type and Decision: In a records review conducted on 28 October 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, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 9 March 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 January 2012 (2) Basis for Separation: The applicant was informed of the following reasons: On 15 December 2011, the applicant knowing of the duties, at JCOP Pul E. Sayad, Afghanistan, was derelict in the performance of those duties by willfully failing to wear the Personal Protective Equipment while on guard duty, as it was the applicant’s duty to do so, in violation of Article 92, UCMJ. On 13 July 2011, at Bagram, Afghanistan, the applicant wrongfully appropriated a Benchmade 585 Mini Barrage Knife of a value of $89.95, the property of AAFES, in violation of Article 121, UCMJ. On 13 July 2011, at Bagram, Afghanistan, the applicant wrongfully appropriated a Benchmade 585 Mini Barrage Knife of a value of $99.95, the property of AAFES, in violation of Article 121, UCMJ. Those acts, coupled with the applicant’s past duty performance displayed a constant trend of misconduct and disregard for military authority. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 9 January 2012 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: In an undated memorandum / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 November 2009 / 5 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-3 / 31B10, Military Police / 2 years, 6 months, 7 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (23 March 2011 – 13 January 2012) f. Awards and Decorations: NDSM, ACM-2CS, GWOTSM, ASR g. Performance Ratings: NA Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 13 July 2011, reflects the applicant was apprehended for larceny of two black in color Benchmade Barrage folding Knives of a value of $99.95 and $89.95, property of AAFES at AAFES Main PX, Bagram Airfield, Afghanistan. CG Article 15, dated 26 July 2011, for wrongfully appropriating a Benchmade 585 Mini Barge Knife of a value of $89.95, property of AAFES, on 13 July 2011, and for wrongfully appropriating a Benchmade 585 Barge Field Knife of a value of $99.95, property of AAFES, on 13 July 2011, in violations of Article 121, UCMJ. The punishment consisted of a reduction to E-2, and extra duty and restriction for 14 days, of which the punishment of restriction was suspended. A Developmental Counseling Form for various acts of misconduct. CG Article 15, dated 22 December 2011, for dereliction of duties by willfully failing to wear the Personal Protective Equipment while on guard duty on 15 December 2011, in violation of Article 92, UCMJ. The punishment consisted of a reduction to E-1; forfeiture of $342; and extra duty for 14 days. Report of Mental Status Evaluation, dated 3 January 2012, reflects the applicant was psychiatrically cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. h. Lost Time / Mode of Return: None i. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored outline; and a notarized third- party statement. 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), 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 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. 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 Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the discharge should be upgraded because the aspects of the Article 121 charges were completed incorrectly in the MP Report; the crimes were committed at two different times, and the dollar amounts for the items were rounded up making the listed charge inaccurate and a higher offense. The issues the applicant submitted are not a matter upon which the Army Discharge Review Board grants a change in discharge. The issues raise no matter of fact, law, procedure, or discretion related to the discharge process, nor are they associated with the discharge when it was issued. Further, the AMHRR indicates the applicant committed discrediting offenses. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization The applicant contends never being advised of the rights or questioned regarding a second theft of knife and the applicant paid more restitution than required to AAFES. These issues also raise no matter of fact, law, procedure, or discretion related to the discharge process, nor associated with the discharge when it was issued. The applicant contends other Soldiers were threatened with reprisal if they spoke on behalf of the applicant at the Article 15 proceeding, by members of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported the threats to proper authories. The applicant contends being treated unfairly and impartial because of previously having been in trouble, and the third-party statement provides the applicant was harassed and discriminated by members of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment to proper authorities. The 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? No. The Board’s Medical Advisor 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 actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Prior Decisions Cited: c. Response to Contention(s): (1) The applicant contends the discharge should be upgraded because the aspects of the Article 121 charges were completed incorrectly in the MP Report; the crimes were committed at two different times; the dollar amounts for the items were rounded up making the listed charge inaccurate and a higher offense; the applicant was never advised of the rights or questioned regarding a second theft of knife; and the applicant paid more restitution than required to AAFES. The Board considered this contention and determined the dollar amount does not excuse the applicant’s misconduct of theft, dereliction of duty as a sentinel, a constant display of misconduct and a disregard for military authority. Thus, the applicant was properly and equitably discharged. (2) The applicant contends other Soldiers were threatened with reprisal if they spoke on behalf of the applicant at the Article 15 proceeding, by members of the chain of command. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that there is insufficient evidence in the file to support this contention. Ultimately, the applicant was properly and equitably discharged. (3) The applicant contends being treated unfairly and impartial because of previously having been in trouble, and the third-party statement provides the applicant was harassed and discriminated by members of the chain of command. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that there is insufficient evidence in the file to support this contention as the applicant committied theft from AAFES, was derelect in duties as a sentinel, constantly displayed a disregard for military authority. Ultimately, the applicant was properly and equitably discharged. d. 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. e. 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 did not have a BH conditions that could excuse or mitigate the offenses of theft, dereliction of duty as a sentinel, a constant display of misconduct and a disregard for military authority. 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 AR20200002240 1