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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, except for one isolated incident the applicant served honorably. The applicant states a mental health condition played a role in discharge. The applicant states the unit was getting ready for a CIP inspection and the supply sergeant told the group everything in this box is excess so take it and make it disappear. The applicant did not realize it was a mistake until taken to the MP station. The applicant states the trauma of war was the reason for the bad decision. The applicant contends an upgrade would allow access to VA benefits. b. Board Type and Decision: In a records review conducted on 9 November 2022, 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 / General (Under Honorable Conditions) b. Date of Discharge: 16 February 2011 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 18 January 2011, the applicant was charged with: Violation of Article 121, between on or about 1 May 2010 and 20 October 2010, steal one Thermal Eyesight, three reflexive sights, one pair of sunglasses, one weapons cleaning kit, one global positioning system device, and one Surefire light, military property, of a value of about $6,650, the property of the U.S. Army. (2) Legal Consultation Date: 24 January 2011 (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: 10 February 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 November 2008 / 3 years, 2 weeks b. Age at Enlistment / Education / GT Score: 30 / GED / 107 c. Highest Grade Achieved / MOS / Total Service: E-4 / 74D10 L3, Chemical Operations Specialist / 12 years, 3 months, 18 days d. Prior Service / Characterizations: USAR, 27 January 1997 – 3 March 1997 / NA IADT, 4 March 1997 – 13 August 1997 / HD USAR, 14 August 1997 – 21 January 2005 / HD (Break in Service) USAR, 9 March 2007 – 3 November 2008 / HD e. Overseas Service / Combat Service: SWA / Iraq (15 December 2008 – 7 December 2009) f. Awards and Decorations: ICM-2CS, ARCOM, NDSM, GWOTSM, NCOPDR, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation consisting of several sworn statements dated 20 October 2020, reflect the applicant was investigated and charged with larceny of government property. Charge sheet as described in previous paragraph 3c. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided RCS Client Information Record generated on 21 September 2016, which reflects treatment for PTSD and depression. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; three letters of support and RCS Client Information Record. 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 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. (5) 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.) (6) 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 record of service, 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 general (under honorable conditions) discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends mental health, and the trauma of war played a role in the discharge. The applicant’s AMHRR contains no documentation of PTSD diagnosis. The applicant provided RCS Client Information Record generated on 21 September 2016 for treatment for PTSD and depression. The AMHRR is void of a mental status evaluation. The applicant contends an upgrade would allow access to VA benefits. 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 good service, including a combat tour. 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 prior to deploying to Iraq. They all recognize the applicant’s struggles after leaving the Army. 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: Major Depressive Disorder (MDD), Adjustment Disorder, Dysthymic Disorder, Reaction to Chronic Stress, Chronic PTSD, Bipolar Disorder, and Schizoaffective Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that the applicant’s MDD, Adjustment Disorder, Dysthymic Disorder, Reaction to Chronic Stress, Chronic PTSD, Bipolar Disorder, and Schizoaffective Disorder existed during 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 none of the applicant’s BH conditions mitigate theft of government property since none of them interfere with one’s ability to distinguish between right and wrong and act in accordance with the right. There is no evidence in the active duty medical record that applicant’s judgment was impaired due to psychosis, medication issues, or any other impairments. (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, that the available evidence did not support a conclusion that the applicant’s MDD, Adjustment Disorder, Dysthymic Disorder, Reaction to Chronic Stress, Chronic PTSD, Bipolar Disorder, and Schizoaffective Disorder outweighed the basis for applicant’s separation – theft of one Thermal Eyesight, three reflexive sights, one pair of sunglasses, one weapons cleaning kit, one global positioning system device, and one Surefire light, military property, of a value of about $6,650, the property of the U.S. Army – for the aforementioned reason. b. Response to Contention(s): (1) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention and noted Army Regulation 635-200 which stipulates, in pertinent part, circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The Board determined the applicant’s contention does not outweigh the severity of the offenses. (2) The applicant contends mental health and the trauma of war played a role in the discharge. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. In this case, the Board considered this contention and determined that none of the applicant’s BH conditions mitigate or excuse the applicant’s theft of government property for the aforementioned reason. (3) The applicant contends an upgrade would allow access to VA benefits. 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 (4) The applicant contends good service, including a combat tour. The Board considered the totality of the applicant’s service record, but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the theft of government property, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (5) The third-party statements provided with the application speak highly of the applicant prior to deploying to Iraq. The Board considered the third-party statements and determined the statements do not outweigh the basis for separation due to the severity of the offenses. c. The Board determined that the discharge is, at this time, proper and equitable, in light of 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 of all the evidence before the Board, the applicant’s MDD, Adjustment Disorder, Dysthymic Disorder, Reaction to Chronic Stress, Chronic PTSD, Bipolar Disorder, and Schizoaffective Disorder did not excuse or mitigate the basis for separation – Thermal Eyesight, three reflexive sights, one pair of sunglasses, one weapons cleaning kit, one global positioning system device, and one Surefire light, military property, of a value of about $6,650, the property of the U.S. Army. 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. (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 and the applicant’s BH conditions are service limiting. 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 AR20210002332 1