1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant was awarded various awards and served honorably and without incident until the accusation of misconduct related to the applicant's assignment as Supply Specialist. The accusation resulted in a special court-martial and the applicant was ultimately separated on 21 June 2014. The applicant's service, before the allegations of theft, was beyond stellar. The applicant had a reputation among both peers and superiors as a Soldier who embodied professionalism, trustworthiness, and responsibility. Although the applicant respects the decision rendered in this case, there is evidence tending to show the applicant did not engage in much of the conduct for which the applicant was found guilty. The characterization and narrative reason were inequitable based on the evidence. It is respectfully submitted the applicant's character of service should be changed from general (under honorable conditions) to honorable. The applicant was a highly respected Soldier who was described by superior officers as professional, ethical, and diligent. These same officers stated they would welcome the chance to work with the applicant because of these very qualities. The applicant's superiors noted the punishment the applicant received was excessive, and the actions had been sanctioned on more than one occasion and may have led to the applicant unwittingly overstepping the boundaries. Accordingly, as Sergeant First Class M. noted, "[We] mentor our Soldiers to know that mistakes can be recovered from and atoned for." The Board has the opportunity to exemplify that ideology by granting the applicant's clemency request to upgrade the discharge to honorable and by changing the narrative reason for separation to Miscellaneous. b. Board Type and Decision: In a records review conducted on 2 March 2023, and by a 4-1 vote, the Board determined the discharge is inequitable based on the totality of the record to include the length and quality of the applicant's service, the length of time since the discharge outweighing the basis for separation. 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 Misconduct (Minor Infractions), with a corresponding separation code of JKN. The Board determined the RE code was proper and equitable and voted not to change it. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 21 June 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 May 2014 (2) Basis for Separation: The applicant was informed of the following reasons: On 4 March 2014, the applicant was convicted in a Federal Court. The applicant was found guilty of one specification of Article 108, UCMJ, Destruction of Government Property, and eight specifications of Article 121, UCMJ, Larceny (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 14 May 2014 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 4 June 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 May 2012 / NIF b. Age at Enlistment / Education / GT Score: 26 / Associate's Degree / 94 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92Y10, Unit Supply Specialist / 4 years, 4 months, 13 days d. Prior Service / Characterizations: RA, 9 February 2010 - 3 May 2012 / HD e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: ASUA, AGCM, NDSM, GWOTSM, KDSM, ASR, OSR-3 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Result of Trial reflects the applicant was tried in a Special Court-Martial on 4 March 2014. The applicant was charged with nine specifications. The summary of offenses, pleas, and findings: Charge I: Violation of Article 108, UCMJ. The Specification: On 30 July 2013, without proper authority, dispose of by throwing it in the trash, an M2 compass, of a value of about $200, military property. Plea: Not Guilty. Finding: Guilty. Charge II: Violation of Article 121, UCMJ: Specification 1: Between 1 May 2012 and 30 July 2013, steal a padlock, military property, of a value of more than $500. Plea: Not Guilty. Finding: Dismissed by military judge. Specification 2: Between 13 July 2011 and 30 July 2013, steal and electric drill set, eight mechanical pencils, and a Gerber cleaning tool, military property, of a value of less than $500. Plea: Not Guilty. Finding: Guilty. Specification 3: Between 1 August 2012 and 30 July 2013, steal 36 chem Lights and a weapons cleaning kit, military property, of a value of less than $500. Plea: Not Guilty. Finding: Guilty. Specification 4: Between 20 August 2011 and 30 July 2013, steal 40 document protectors, a stencil set, and 15 memorandum books, military property, of a value of less than $500. Plea: Not Guilty. Finding: Guilty. Specification 5: Between 1 October 2011 and 30 July 2013, steal two M2 compasses, a dusting mop head, two spiral memo books, and two Skill Craft Aviator Pens, military property, of a value of less than $500. Plea: Not Guilty. Finding: Guilty. Specification 6: Between 1 January and 30 July 2013, steal a padlock, military property, of a value of less than $500. Plea: Not Guilty. Finding: Guilty. Specification 7: Between 1 March 2012 and 30 July 2013, steal a stapler, military property, of a value of less than $500. Plea: Not Guilty. Finding: Guilty. Specification 8: Between 1 August 2011 and 30 July 2013, steal markers, binders, index cards, mechanical pencils, markers and pens, notepads, and a ruler, military property, of a value of less than $500. Plea: Not Guilty. Finding: Guilty. Sentence: Reduction to E-1; fine of $2,400; confinement for 30 days if fine is not paid; and a reprimand. Two Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 18 April 2014, the applicant indicated being unable to sleep or stay asleep; depression counseling; depression and excessive worry. The examining medical physician noted in the comments section: Under care by Behavioral Health. Report of Mental Status Evaluation, dated 30 April 2014, reflects the applicant was cleared for separation. 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 post-traumatic stress disorder (PTSD) and mild traumatic brain injury (mTBI). The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The applicant was diagnosed with: Adjustment disorder and major depressive disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Legal Brief; enlistment documents; separation documents; numerous third-party character references. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. e. Army Regulation 635-5-1, Separation Program Designator (SPD) Codes, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for 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 an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the 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 evidence reflects the applicant did not engage in much of the conduct the applicant was found guilty and the punishment was excessive. The AMHRR reflects the applicant was found guilty by a special court-martial of the offenses which form the basis for the separation. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The third party statements provided with the application speak highly of the applicant and recognize the applicant's good military service. 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, Major Depression. (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 and Major Depression, and the VA has service connected for Chronic 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's Adjustment Disorder, Major Depression, Chronic Adjustment Disorder do not mitigate the applciant's offenses of larceny and destruction of government properity as there is no natural sequela between an Adjustment Disorder, Major Depression, Chronic Adjustment Disorder and destruction of government property or larceny since neither condition interfere with the ability to distinguish between right and wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's Adjustment Disorder, Major Depression, and Chronic Adjustment Disorder did not outweigh the medically unmitigated offenses - larceny and destruction of government property. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board found validity in this contention and voted to upgrade the discharge based on the totality of the applicant's record to include the length and quality of the applicant's service, the length of time since the discharge outweighing the basis for separation. (2) The applicant contends the evidence reflects the applicant did not engage in much of the conduct the applicant was found guilty and the punishment was excessive. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the totality of the record to include the length and quality of the applicant's service and the length of time since the discharge outweighing the basis for separation. (3) The applicant contends good service. The Board considered this contention and ultimately voted to upgrade the discharge based on the totality of the record to include the length and quality of the applicant's service and the length of time since the discharge outweighing the basis for separation. c. The Board determined the discharge is inequitable based on the totality of the record to include the length and quality of the applicant's service and the length of time since the discharge outweighing the basis for separation. Therefore, the Board voted to grant relief. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable based on the totality of the record to include the length and quality of the applicant's service and the length of time since the discharge outweighing the basis for separation. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The RE code will not change, as the Board determined that 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: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20210002245 1