1. Applicant's Name: a. Application Date: 29 March 2020 b. Date Received: 10 April 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 under other than honorable conditions. The applicant requests an upgrade to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, the primary purpose for upgrading is to obtain a government job and most jobs listed in USAJOBS require secret clearance and eventually top- secret clearance. The applicant elected receiving a Chapter 10 discharge in lieu of trial by court- martial at the advice of a JAG officer, which was not a wise decision because of not being in contact with the former spouse for an extended time. The former spouse purposely was not available. The applicant should have proceeded with the court-martial proceedings to justify the case. The applicant attempted to submit paperwork to the unit PAC twice to file for a divorce and have former spouse removed from the DEERS enrollment and discontinuing BAH and other marital benefits. The actions were declined, and the applicant did not have any resources available during the deployment to provide signed divorce documents to the PAC for removal of former spouse from DEERS enrollment. The applicant was stuck with receiving BAH and other benefits provided to married personnel. The applicant has been employed as an automotive transmission technician from 2008 through 2011. The applicant enrolled in a school for information technology for network management and earned a bachelor's degree with a GPA of 3.17. Since graduating in 2011, the best entry level jobs available were with a government agency but was afraid to pursue the government jobs as the separation is not a desired type to consider. The applicant has since reluctantly worked in the automotive field while struggling to pay the bills in full. It has been 14 years since the discharge. At 54 years old, the applicant learned a valuable lesson in life, and believes it is time for a change in careers. A favorable decision would be greatly appreciated as purchasing a home has been out of the question and the automotive industry (dealerships in particular), is a very unstable career path. b. Board Type and Decision: In a records review conducted on 22 March 2023, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, post-service accomplishments, time elapsed since discharge and prior periods of honorable service. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 20 March 2006 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): NIF The applicant's Army Military Human Resource Record (AMHRR) is void of the Charge Sheet. However, the applicant's Request for Discharge in Lieu of Trial by Court-Martial shows the following charge being preferred against the applicant: Violation of Article 121, UCMJ, Larceny of Military Property of a value of more than $500. (2) Legal Consultation Date: 7 February 2006 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 3 March 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 February 2005 / 4 years b. Age at Enlistment / Education / GT Score: 39 / High School Graduate / 117 c. Highest Grade Achieved / MOS / Total Service: E-6 / 19K10, M1 Armor Crewman / 17 years, 6 months, 22 days d. Prior Service / Characterizations: RA, 30 August 1988 - 28 August 1992 / HD ARNG, 29 August 1992 - 22 July 1993 / NIF RA, 23 July 1993 - 28 June 1995 / HD RA, 29 June 1995 - 28 June 1998 / HD RA, 29 June 1998 - 19 July 1999 / HD RA, 20 July 1999 - 6 November 2000 / HD RA, 7 November 2000 - 12 February 2005 / HD e. Overseas Service / Combat Service: Germany, Korea, SWA / Iraq (19 March 2004 - 18 March 2005) f. Awards and Decorations: ARCOM-5, AAM-8, VUA, AGCM-2, SWASM-BSS-4, GWOTEM, GWOTSM, AFSM, NCOPDR-2, NDSM, ASR, OSR-2, CIB, KLM-SA g. Performance Ratings: April 2004 - March 2005 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: CID Investigation Report with two sworn statements, dated 11 May 2005, reflects an investigation involving the applicant on receipt of fraudulent BAH. Memorandum, dated 30 January 2006, subject: Article 31(b) Investigating Officer's Report the Article 32(b) investigating officer's report concluded there was sufficient evidence and reason the alleged charge and its specification was committed, and the case should proceed to a General Court-Martial. The investigation found the applicant did steal property greater than $500 between December 1998 and 2005, property of the US Government. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Forms 214 (28 August 1992); enlistment documents (29 August 1992, 23 July 1993, 29 June 1995, 29 June 1998, 20 July 1999, 7 November 2000, 13 February 2005); ERB; Article 15 (8 January 2004); Supplementary Action (Article 15); two DA Forms 4187); promotion orders; five NCOERs; Court-Martial Charges; two Sworn Statements; CID Report; Article 15 Investigation Report and transcript of proceedings; Final Judgment of Divorce packet; Request for Discharge memorandum; GCMCA decision memorandum; separation orders; and DD Form 214 20 March 2006). 6. POST SERVICE ACCOMPLISHMENTS: The applicant has been employed in the automotive industry and obtained a bachelor's degree. 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) 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.) (7) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to general (under honorable conditions) or honorable. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's AMHRR includes partial 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 authenticated by the applicant's signature. The applicant's DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial, with a characterization of service of Under Other Than Honorable Conditions. The available evidence in the applicant's AMHRR confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment, such as a government job. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends electing a Chapter 10 discharge in lieu of trial by court-martial at the advice of a JAG officer was not a wise decision and instead, should have proceeded with the court-martial proceedings to justify the case. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends having submitted paperwork to the servicing PAC to have former spouse removed from the DEERS enrollment and discontinuing BAH and other marital benefits, but the actions were declined. The applicant did not submit any evidence, other than the applicant's statement, to support the contention. The applicant contends maintaining employment in automobile industry and obtaining a bachelor's degree. 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. 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. Response to Contention(s): (1) The applicant contends maintaining employment in automobile industry and obtaining a bachelor's degree. The Board considered this contention and determined that the applicant's post-service accomplishments as contended, in conjunction with considering the totality of the applicant's service record to include length and quality of service, combat service, time elapsed since discharge and prior periods of honorable service warranted partial relief to GD. The Board found that the applicant's service, given almost 7 years of fraudulent BAH collections, was not sufficiently meritorious to warrant an honorable discharge (2) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment, such as a government job. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. (3) The applicant contends electing a Chapter 10 discharge in lieu of trial by court-martial at the advice of a JAG officer was not a wise decision and instead, should have proceeded with the court-martial proceedings to justify the case. The Board considered this contention but determined that the contention is not a matter upon which the Army Discharge Review Board grants a change in discharge. 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. (4) The applicant contends having submitted paperwork to the servicing PAC to have former spouse removed from the DEERS enrollment and discontinuing BAH and other marital benefits, but the actions were declined. The Board considered this contention non-persuasive during its deliberations. Due to the length of misconduct, 7 years of BAH fraud, the applicant's claim to have attempted to stop benefits is unlikely. The applicant also did not provide evidence to support the claim. c. The Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, post-service accomplishments, time elapsed since discharge and prior periods of honorable service. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant's length and quality of service, to include combat service, post-service accomplishments, time elapsed since discharge and prior periods of honorable service warranted partial relief to the characterization. Thus, the prior characterization is no longer appropriate. The Board found that the applicant's service, given almost 7 years of fraudulent BAH collections, was not sufficiently meritorious to warrant an honorable discharge. (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, was requested by the applicant in writing, and properly captures the applicant's 7 years of BAH fraud. (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: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20200006455 1