1. Applicant’s Name: a. Application Date: 11 May 2020 b. Date Received: 19 May 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. The applicant seeks relief contending, in effect, the applicant would like an upgrade for the purpose of the applicant and family to take advantage of the Veterans Affairs Home Loan Program. The applicant’s court martial was expunged while in confinement. b. Board Type and Decision: In a records review conducted on 14 June 2023, 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 27 April 2014 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): NIF Special Court-Martial Order Number 6, dated 14 March 2014 reflects the applicant was arraigned at Fort Bliss, Texas, on the following offenses at a special court-martial convened by the Commander, Headquarters, Fort Bliss: Charge I: Violating Article 81, Uniform Code of Military Justice (UCMJ), for conspiring with Private First Class, and a Specialist to commit an offense under the UCMJ, to wit: larceny of funds, of a value greater than $500.00, the property of the United States, and in order to effect the object of the conspiracy the applicant did receive a stolen gas card. Plea: Guilty, except the words, “a stolen gas card” substituting therefore the words, “stolen gasoline.” To the excepted words, Not Guilty. To the substituted words, Guilty. Finding: Guilty, amended to read, “In that the [applicant], U.S. Army, did, at or near Fort Bliss, Texas, between on or about 19 August 2012 and on or about 14 January 2013, conspire with Specialist J.G. to commit an offense under the UCMJ, to wit: larceny of funds, of a value less than $500.00, the property of the United States, and in order to effect the object of the conspiracy the applicant did receive gasoline” on or about 19 August 2012 and on or about 14 January 2013, at or near Fort Bliss, Texas. Charge II: Violating Article 107, UCMJ, for having the intent to deceive, make to Special Agent B.B., an official statement, to wit: [The applicant] have not been to Los Angeles, California, since July 2012, or words to that effect, which statement was totally false, and was then known by the applicant to be so false on or about 20 February 2013, at or near Fort Bliss, Texas. Plea: Not Guilty. (After entry of pleas but before findings, the military judge granted the motion of Trial Counsel to dismiss The Specification of Charge II.) Finding: Dismissed. Charge III: Violating Article 121, UCMJ, for: Specification 1: Between on or about 19 August 2012 and on or about 14 January 2013, on divers occasions, at or near El Paso, Texas, at or near Houston, Texas, at or near Sonora, Texas, at or near Columbus, Georgia, at or near Charleston, South Carolina, at or near Greensboro, Georgia, at or near College Park, Georgia, at or near San Antonio, Texas, at or near Fort Stockton, Texas, at or near Sunland Park, New Mexico, at or near Liberty, Texas, at or near Los Angeles, California, at or near Deming, New Mexico, at or near Phoenix, Arizona, and at or near Tucson, Arizona, the applicant, did, steal funds, military property, of a value greater than $500.00, the property of the United States. Plea: Guilty, except the words, “at or near Houston, Texas, at or near Sonora, Texas, at or near Columbus, Georgia, at or near Charleston, South Carolina, at or near Greensboro, Georgia, at or near College Park, Georgia, at or near San Antonio, Texas, at or near Fort Stockton, Texas, at or near Sunland Park, New Mexico, at or near Liberty, Texas, at or near Deming, New Mexico.” To the excepted words, Not Guilty. (After entry of pleas but before findings, the military judge granted the unopposed motion of Trial Counsel to except the word, “greater” and substitute therefore the word, “less”.) Finding: Guilty, amended to read, “In that the [applicant], U.S. Army, did, at or near El Paso, Texas, at or near Los Angeles, California, at or near Phoenix, Arizona, and at or near Tucson, Arizona, on divers occasions, between on or about 19 August 2012 and on or about 14 January 2013, steal funds, military property, of a value less than $500.00, the property of the United States.” Specification 2: On or about 19 August 2012, at or near Fort Bliss, Texas, the applicant, did, steal a credit card, military property, of a value of less than $500.00, the property of the United States. Plea: Guilty, except the words [and figures], “19 August 2012” substituting therefore the words [and figures], “10 September 2012” further excepting out the words, “military property.” To the excepted words, Not Guilty. To the substituted words, Guilty. Finding: Guilty, amended to read, “In that the [applicant], U.S. Army, did, at or near Fort Bliss, Texas, on or about 19 August 2012, steal a credit card, of a value of less than $500.00, the property of the United States.” Charge IV: Violating Article 134, UCMJ, for wrongfully receiving a credit card, of a value less than $500.00, the property of the United States, that the applicant then knew had been stolen, which conduct under the circumstances was prejudicial to good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces on or about 19 August 2012, at or near Fort Bliss, Texas. Plea: Not Guilty. (After entry of pleas but before findings, the military judge granted the motion of Trial Counsel to dismiss The Specification of Charge IV.) Finding: Dismissed. Sentence was adjudged on 22 October 2013, to be discharged from the Army with a bad conduct discharge and to be confined for 6 months. The findings of guilty and the sentence are disapproved. The applicant’s request for discharge pursuant to the provisions of Chapter 10, Army Regulation 635-200, was approved on the date of this action, for the issuance of a discharge under other than honorable conditions. The remaining charges and their specifications are dismissed. All rights, privileges, and property of which the applicant has been deprived by virtue of these proceedings are hereby ordered restored. (2) Legal Consultation Date: NIF (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: 14 March 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 February 2011 / 4 years b. Age at Enlistment / Education / GT Score: 22 / High School Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92A10, Automated Logistical Specialist / 2 years, 9 months, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag) reflects the applicant was flagged for adverse action (AA) effective 22 October 2013. Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY),” to “Confined by Military Authorities (CMA),” effective 22 October 2013; From “CMA,” to “PDY,” effective 15 March 2013 (should be 15 March 2014). The applicant’s Enlisted Record Brief (ERB), dated 23 May 2014, reflects the applicant was flagged for involuntary separation/field initiated (BA), effective 22 October 2013; and for non- compliance with Army body composition program, effective 9 September 2013. The Assignment Eligibility Availability code reflects the applicant was temporarily ineligible for reassignments due to medical, convalescence, confinement due to trial by court martial, enrollment in Track III ASAP, or local bar to reenlistment. FLAGS / AEA codes: BA, KA / C RE/Prohib codes: RE 9V Orders 311-58, dated 7 November 2013, reflects the applicant was assigned to the Personnel Control Facility, Fort Sill, OK with confinement at the Northwestern Joint Regional Correctional Facility at Joint Base Lewis-McChord, WA. The applicant’s DD Form 214, reflects the applicant was reduced from E-3 to E-1 effective 14 March 2014. i. Lost Time / Mode of Return: CMA, 22 October 2013 - 14 March 2014 / Released from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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) 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 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 (DD Form 458, Charge Sheet) is not part of the applicants record; however, the 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. Special Court Martial Order Number 6, dated 14 March 2014, reflects the applicant voluntarily requested a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In this order, the applicant admitted guilt to two charges. The applicant’s request was approved on 14 March 2014 for issuance of a discharge under other than honorable conditions. 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 would allow the applicant and family to take advantage of the Veterans Affairs Home Loan Program. This incident should not limit the applicant and family from taking advantage an excellent program provided to veterans. Eligibility for veteran’s benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends the charges were expunged while in confinement. The dismissal of charges is a procedural step, which is part of a normal process when an alternative forum is chosen. In this case, the charges were dismissed because the applicant requested a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, and the convening authority approved the request. The applicant contends the event which led to the discharge from the Army was an isolated incident aside from the applicant’s superb track record during 33 months in the military. AR 635- 200, paragraph 3-5, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. 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 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 that the offense leading to discharge was an isolated incident. The Board considered this contention but determined that the applicant voluntarily requested discharge in lieu of trial by court-martial. Therefore, a discharge upgrade is not warranted. (2) The applicant contends that the court-martial case was expunged while the applicant was in confinement. The Board considered this contention and noted that this action is a procedural step which is part of a normal process when an alternative forum is chosen. There was no evidence presented to the Board to convince the Board of any mitigating circumstances. Therefore, a discharge upgrade is not warranted. (3) The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 to all the evidence before the Board, the applicant was not found to have a behavioral health condition that would potentially excuse or mitigate applicant’s theft offenses. The Board also considered the applicant's contention regarding the offenses being an isolated incident and found that the totality of the applicant's record does not warrant a discharge upgrade. 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. Therefore, the applicant’s Under Other Than Honorable Conditions discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or meritorious service warranted for an upgrade to Honorable discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and 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 AR20200007283 1