1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 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 honorable. The applicant requests a narrative reason change. The applicant seeks relief contending, in effect, being improperly separated under chapter 14-9. The separation and characterization of service were executed past the applicant's proper ETS date and therefore violated AR 635-200. The applicant was convicted of larceny by the Republic of Korea and fined W3,000,000.00 (approximately $2,700.00). No part of the punishment entailed confinement by Korean authorities. On 13 May 2015, the applicant was notified being recommended for separation under chapter 14-9. For the next three months no action was taken on the separation. On 13 July 2015, the applicant's ETS date passed, and the applicant was placed on involuntary leave. On 14 July 2015, the applicant was able to pay the fine and the international hold was lifted on 16 July 2015. On 20 July 2015, the chain of command began the process of extending the ETS. The chain of command consistently stated the ETS date was being extended to properly out-process the applicant. The DA Form 4187 signed by the commander, explicitly stated the applicant was no longer pending involuntary separation. On 22 July 2015, the applicant's ETS was extended to 27 July 2015. The next day, LTG C. separated the applicant under Chapter 14, paragraph 14-9 and directed the service be characterized as under other than honorable conditions. As a result of this characterization, the applicant was not allowed to sell 58 days of leave back to the military. The separation under Chapter 14-9 was done in violation of AR 635-200, paragraph 1-26 which states retention beyond a Soldier's ETS to process administrative separation proceedings pursuant to this regulation is not authorized. The separation does not fall into any of the exceptions provided, nor did the command attempt to extend the ETS under the provisions of paragraphs 1-21 through 1-24. If the command needed to keep the applicant past the ETS due to pending action by the host nation, then they were required, under paragraph 1-27, to offer the choice of voluntarily extending the ETS date or be turned over to foreign authorities. Additionally, the command would have been required to have the applicant sign a statement making this choice. The command never offered the applicant this choice, nor advised the applicant of the right to make this decision. The command continually stated the purpose of extending the ETS was to properly out-process the applicant, when in reality the intent was to separate the applicant under Chapter 14 with an under other than honorable conditions characterization of service. b. Board Type and Decision: In a records review conducted on 09 November 2023, and by a 3-2 vote, the majority of the board determined that the characterization of service was improper based on the applicant's length, quality, and combat service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Normal Separation of Service with a corresponding separation code of KBK and the reentry code to RE-1. 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 (Civil Conviction) / AR 635-200, Chapter 14, Sec II / JKB / RE-3 / Honorable b. Date of Discharge: 3 August 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 April 2015 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was found guilty by the Uijeongbu District Court of larceny. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 12 May 2015 (5) Administrative Separation Board: On 12 May 2015, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 23 July 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 July 2009 / 6 years b. Age at Enlistment / Education / GT Score: 23 / some college / 101 Highest Grade Achieved / MOS / Total Service: E-4 / 25V10, Combat Documentation/ Production Specialist / 6 years, 20 days c. Prior Service / Characterizations: None d. Overseas Service / Combat Service: Korea, SWA / Afghanistan (20 March 2011 - 29 August 2011; 12 February 2012 - 29 July 2012) / The deployments to Afghanistan are not listed on the DD Form 214; however, are reflected on the applicant's Enlisted Record Brief. e. Awards and Decorations: ACM-2CS, JSCM-2, AAM-2, AGCM-2, NDSM-2, GWOTSM, KDSM, NCOPDR, ASR, OSR, NATOMDL, CAB f. Performance Ratings: NA g. Disciplinary Action(s) / Evidentiary Record: Uijeongbu District Court Summary Order, 29 October 2014, reflects the applicant was found guilty of larceny and sentenced to a fine of 3,000,000 Won. Developmental Counseling Form for being recommended for Chapter 14-9 discharge. h. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Medical History, 17 February 2015, the examining medical physician noted in the comments section: Alcohol Treatment Center for alcohol dependency (August 2013) and ASAP for alcohol dependency (July 2013 - present). Report of Medical Assessment, 17 February 2015, the health care provider noted in the comments section: Treatment for alcohol dependency. Report of Mental Status Evaluation, 27 February 2015, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and mTBI with negative results. The applicant was diagnosed with: Axis I: Alcohol Dependence. It was noted the applicant was in treatment with ASAP for Alcohol Dependence. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 149; ARBA Letter; self-authored statement; separation packet; DA Form 31; DA Form 4187; 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 (Active Duty Enlisted Administrative Separations) 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) 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. (4) 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. (5) Section II, Paragraph 14-5, prescribes conditions which subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. (6) Paragraph 14-9 provides procedure for civil court cases in foreign countries, and the major overseas commanders may approve discharge of Soldiers convicted by a foreign tribunal. (7) Paragraph 1-27 provides procedure for retention in service while subject to criminal jurisdiction of foreign courts but not physically confined by such courts. 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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, section II, misconduct (civil conviction). 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-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests a narrative reason change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 14, Section II, AR 635-200 with an honorable discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Civil Conviction)," and the separation code is "JKB." Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214, and dictates entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635- 5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the separation was in violation of AR 635-200, the command extended the applicant beyond the ETS to process the applicant for administrative separation. If the command needed to keep the applicant past the ETS due to pending action by the host nation, the command was required to offer the choice to voluntarily extend the ETS date or be turned over the to the foreign authorities. The applicant provided documentation which reflects on 29 October 2014, the applicant was convicted of larceny and fined W3,000,000.00 no part of the punishment entailed confinement. On 15 April 2015, the applicant was notified of being recommended for separation. On 13 July 2015, the applicant's ETS date passed, and the applicant was placed on involuntary leave. On 14 July 2015, the applicant paid the fine and the international hold was lifted on 16 July 2015. On 22 July 2015, the chain of command requested an ETS adjustment to 27 July 2015 to have sufficient time to clear from the installation and ETS properly. The justification stated the applicant had passed the ETS date due to pending involuntary separation and international hold. The applicant needed an adjustment to the current ETS to out process. The applicant was no longer pending involuntary separation and the international hold had been lifted. On 23 July 2015, the separation authority approved the separation under the provisions of AR 635-200, Chapter 14-9 and directed the applicant's service be characterized as under other than honorable conditions. Army Regulation 635-200, paragraph 1-27b states a Soldier's consent for retention beyond the ETS will be filed in the OMPF. No copy appears in the OMPF. Paragraph 1-27c states if the Soldier's consent to extend the ETS is not obtained, the case, with full details, will be referred through channels to HQDA for instructions. Care will be exercised to ensure each case is submitted before the Soldier's ETS. There is no indication the command did so before the Soldier's ETS. The applicant requests to be compensated for 58 days of leave which the applicant was not able to sell due to the discharge. The applicant's request does not fall within this board's purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 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: Adjustment Disorder. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with an Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant was diagnosed in service with an Adjustment Disorder. However, there is no natural sequela between an Adjustment Disorder and larceny since an Adjustment Disorder does not interfere with the ability to distinguish between right and wrong and act in accordance with the right. Accordingly, there is no medical mitigation for the applicant's basis of separation. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, and determined that the available evidence did not support a conclusion that the applicant's Adjustment Disorder outweighed the basis for applicant's separation - civil conviction for larceny - for the aforementioned reason. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered this contention and voted to change the narrative reason. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635- 200, paragraph 14-12a, the narrative reason for separation to Normal Separation of Service, and the separation code to KBK. (2) The applicant contends the separation was in violation of AR 635-200, the command extended the applicant beyond the ETS to process the applicant for administrative separation. If the command needed to keep the applicant past the ETS due to pending action by the host nation, the command was required to offer the choice to voluntarily extend the ETS date or be turned over the to the foreign authorities. This contention was considered and found valid leading to an upgrade in characterization of service, narrative reason and RE code because the command did not follow the requirements outlined in AR 635-200, paragraph 1-25, 2(c). (3) The applicant requests to be compensated for 58 days of leave which the applicant was not able to sell due to the discharge. The Board considered this contention and determined that the applicant's request does not fall within this board's purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization or download from Army Publishing Directorate site. c. The Board determined the characterization is improper and voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed the separation authority to AR 635-200, the narrative reason for separation to Normal Separation of Service with a corresponding separation code of KBK, and the reentry code to RE-1. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable based on the applicant's length, quality, and combat service. Additionally, the chain of command improperly handled the case due to the incorrect extension beyond ETS. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Normal Separation of Service under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is KBK. (3) The Board voted to change the RE code to RE-1. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: No c. Change Reason / SPD code to: Normal Separation of Service (KBK) d. Change RE Code to: RE-1 e. Change Authority to: AR635-200, Chapter 4 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 AR20210001628 1