1. Applicant's Name: a. Application Date: 21 July 2020 b. Date Received: 4 August 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 and a separation program designator (SPD) change. The applicant seeks relief contending, in effect, to have been discharged due to the actions of a scornful ex-wife. The applicant was stationed in South Korea in 2006. The applicant was authorized to move family from Fayetteville, NC to Philadelphia, the applicant's home of record. The applicant already had one dependent living in Philadelphia who the applicant was already claiming before getting married. The applicant's ex-wife never moved to Philadelphia like they planned. The applicant's ex-wife threatened to end the applicant's military career due to jealousy and because they were no longer together. The applicant's ex-wife called the Criminal Investigation Division (CID) and stated that the applicant was defrauding the government. The applicant informed superiors that the applicant was not knowingly committing fraud. The applicant was under the impression that the ex-wife would also move to Philadelphia while the applicant was stationed in South Korea. The applicant was sent to the finance office to get everything worked out and was told that the applicant just needed to pay the money back that was over paid. The applicant paid every dollar back that was over paid and thought this was going to be the end of it. The applicant was told that the ex-wife was still calling CID claiming the applicant was defrauding the government. The applicant's ex-wife was mad because the applicant did not come back to NC, instead the applicant was stationed at Fort Sill, OK. The applicant's ex-wife felt the marriage was over and wanted the applicant to suffer. The applicant was a great Soldier who advanced to the rank of Staff Sergeant, completed three enlistments honorably, served overseas to include Iraq, and received countless medals, ribbons, and certificates to include Good Conduct Awards. The applicant helped many Soldiers who are still serving obtain advancement in rank. The applicant did not know about all the benefits that would be forfeited. b. Board Type and Decision: In a records review conducted on 21 July 2023, and by a 5- 0 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. 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 due to applicant's IPV and chronic adjustment disorder. 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: 29 June 2007 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 22 May 2007, the applicant was charged with violating Article 122, UCMJ, for stealing United States currency, received by the applicant as government housing allowances, military property, of a value greater than $500.00, the property of the U.S. Government at or near Fort Bragg, NC and at or near Camp Casey, Korea, between on or about 11 October 2005 and on or about 11 November 2006. (2) Legal Consultation Date: 6 June 2007 (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 June 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 February 2005 / 3 years b. Age at Enlistment / Education / GT Score: 26 / High School Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-6 / 13P30, Multiple Launch Rocket System / Fire Direction Specialist / 10 years, 11 months, 22 days d. Prior Service / Characterizations: RA, 1 December 1995 - 24 February 2005 / HD RA, 25 February 2005 - 29 June 2007 / UOTHC e. Overseas Service / Combat Service: Korea, SWA / Iraq (10 April - 17 August 2003) f. Awards and Decorations: ARCOM, AAM, AGCM-2, NATOMDL, NDSM, GWOTSM, KDSM-2, ICM, NCOPDR-2, OSR-3 g. Performance Ratings: February 2001 - August 2003 / Fully Capable September 2003 - April 2004 / Fully Capable May 2004 - August 2004 / Among The Best September 2004 - 31 August 2005 / NIF 1 September 2005 - 31 August 2006 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: The DD Form 214 shows the applicant was reduced from E-6 to E-1 effective 21 November 2007. See Charge Sheet as described in item 3c(1). Pay Adjustment Authorization Form, dated 11 January 2007, reflects the applicant arrived in Korea on 13 October 2005 claiming the applicant's family lived in Philadelphia, PA when the applicant's family did not move from the previous duty station, residing in Fayetteville. NC. The applicant continued to draw with dependent rate basic allowance for housing (BAH) and continental U.S. cost-of-living allowance (CONUS COLA) for Philadelphia, PA through the applicant's arrival to the next assignment at Fort Sill, OK on 7 November 2006. Finance collected the difference of BAH at the Fayetteville, NC rate and Philadelphia, PA and CONUS COLA for 13 October 2005 through 7 November 2006. Total due was $9,566.11. Sworn Statement, dated 18 April 2007, reflects the applicant submitted a travel voucher on or about 17 October 2005, with the intent that the applicant's family would move to Philadelphia while the applicant was in Korea. The applicant received payment for the travel voucher on or about 17 October 2005. The applicant filed the travel voucher because the applicant thought the applicant's family would move to Philadelphia, however they never moved. The money was spent on traveling and the remainder was given to the applicant's then spouse for travel. The applicant's Enlisted Record Brief, dated 5 June 2007, reflects the applicant was flagged for adverse action (AA), effective 6 February 2007. 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; VA Form 21-4138 (Statement in Support of Claim); DD Form 214. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 and a SPD change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The evidence in the applicant's Army Military Human Resource Record (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 the SPD code should be changed. The SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 10, is "KFS." The applicant contends, in effect, to have been discharged due to the actions of a scornful ex- wife. The applicant was stationed in South Korea in 2006. The applicant was authorized to move family from Fayetteville, NC to Philadelphia, the applicant's home of record. The applicant's ex-wife never moved to Philadelphia like they planned. The applicant's ex-wife called the CID and stated that the applicant was defrauding the government. The AMHRR contains the applicant's sworn statement that reflects the applicant submitted a travel voucher on or about 17 October 2005, with the intent that the applicant's family would move to Philadelphia while the applicant was in Korea. The applicant received payment for the travel voucher on or about 17 October 200, however the applicant's family never moved. A Pay Adjustment Authorization Form, dated 11 January 2007, reflects a total of $9,566.11 was recouped by the finance office due to the applicant's family did not move to Philadelphia. The applicant contends, in effect, the applicant was a great Soldier who advanced to the rank of Staff Sergeant, completed three enlistments honorably, served overseas to include Iraq, and received countless medals, ribbons, and certificates to include Good Conduct Awards. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends, in effect, the applicant did not know about all the benefits that would be forfeited. The AMHRR contains the applicant's request for discharge in lieu of trail by court- martial, dated 6 June 2007, that reflects the applicant initialed by the understanding that if the applicant's request for discharge was accepted, the applicant may be discharged under conditions other than honorable. The applicant was advised and understood the possible effects of an under other than honorable conditions discharge (including but not limited to reduction to the lowest enlisted grade (Private E-1) by operation of law) and that, as a result of the issuance of such a discharge, the applicant would be deprived of many or all Army benefits, that the applicant may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that the applicant may be deprived of rights and benefits as a veteran under both federal and state law. The applicant also understood that the applicant may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge. The AMHRR contains a DD Form 214 that reflects the applicant was discharged under other than honorable conditions on 29 June 2007. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Chronic Adjustment DO (30%SC); IPV. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the IPV occurred during military service. VA service connection for Chronic Adjustment DO indicates it is related to military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that it is the opinion of the Agency BH advisor that there are no mitigating BH conditions. While the applicant has been diagnosed with Chronic Adjustment DO and has experienced IPV, these conditions/experiences do not mitigate fraud and theft of money from the government because neither condition affects one's ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contends not knowingly committing fraud. The Board considered this contention and determined the applicant's file shows the applicant submitted documentation to obtain reimbursements for moving family members knowing family members were not relocating with the applicant, which defrauded the government. However, the Board voted to upgrade the applicant's characterization of service based on applicant's length and quality of service, to include combat service. (2) The applicant contends to have been discharged due to the actions of a scornful ex- spouse. The Board considered this contention and determined that the applicant's scornful ex- spouse actions does not mitigate the applicant's fraud and theft of money from the government as the Army affords many avenues to Soldier's including seeking separation for hardship. 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. 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 due to applicant's IPV and chronic adjustment disorder. However, the applicant may request a personal appearance hearing to address further 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 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 outweighed the applicant's misconduct of fraud and theft of money from the government. Thus, the prior characterization is no longer appropriate. (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, based on the applicant's IPV and chronic adjustment disorder which the Board is not appropriate for reentry into military service. 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 AR20200008114 1