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 under other than honorable conditions. The applicant requests an upgrade honorable. The applicant seeks relief contending, in effect, having two honorable discharges from the military, which reflect the service was highly productive. The applicant believes the under other than honorable discharge is unjust compared to the complete record of service. In the 2001, the applicant reenlisted for five years, which was more years to grow as a Soldier and family. On 11 September 2001, the applicant was conducting drills on Fort Myers with Soldiers, when they witnessed a low flying plane pass over and crash into the Pentagon. At the time, the applicant had no idea how much life would change. Within 20 minutes, the unit was on site at ground zero and continued for the next 30 days. Home life fell apart as the spouse no longer wanted anything to do with the military life. They filed for legal separation, and the spouse moved back home to Tennessee with their child. The applicant was embarrassed and did not know who to talk or who to ask for help. In late October of 2001, the applicant's career and family life were falling apart. The applicant began to have mood swings and acting odd without knowing why. The applicant became concerned and sought medical treatment and was diagnosed with bipolar manic depression. The applicant was given medication and for the next few months and was an emotional blank. In December 2001, the applicant committed an off-base crime to pay for the spouse and child to move away. The applicant knows apologizing for these actions does not cover the remorse the applicant feels about the actions. In February 2002, the applicant was beginning to get life back in order upon being sent to Air Assault School. Upon completing the course, the company commander recommended the applicant become the Regimental NCOIC of land and ammo requisitions. This was an unexpected honor for the applicant. The applicant is currently incarcerated and has been using time to better oneself and rebuild bridges with family and community. The applicant is hoping the military records reflect the kind of person and Soldier the applicant was and will outweigh this huge mistake. An upgrade will help continue to right the past and move forward with life. b. Board Type and Decision: In a records review conducted on 8 September 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26, and 28, contain erroneous entries. The Board directed the following administrative corrections and reissue of the applicant's DD Form 214, as approved by the separation authority: a. block 25, separation authority changed to AR 635-200, paragraph 14 SEC II b. block 26, separation code changed to JKB c. block 28, narrative reason for separation changed to Misconduct (Civil Conviction) 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 / AR 635-200, Chapter 14- 12c / JKQ / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 20 February 2003 c. Separation Facts: (1) Date of Notification of Intent to Separate: 10 DEC 02. (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was convicted by civil court for the offenses of burglary, robbery, and abduction. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 13 December 2002 (5) Administrative Separation Board: On 13 December 2002, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: On 31 January 2003, the separation authority approved the applicant's separation under the provisions of AR 635-200, Chapter 14- 5, Civil Conviction / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 January 2002 / 3 years b. Age at Enlistment / Education / GT Score: 21 / GED / 113 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B2P, Infantryman / 4 years, 11 months, 9 days d. Prior Service / Characterizations: RA, 24 April 1998 - 29 October 2000 / HD RA, 30 October 2000 - 23 January 2002 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM-2, AGCM, NDSM, ASR, EIB / The applicant's AMHRR reflects award of the NCOPDR however, the award is not reflected on the DD Form 214. g. Performance Ratings: July 2001 - March 2002 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Court Document from the Circuity Court of The City of Alexandria Virginia, dated 18 October 2002, reflects the applicant was found guilty of one count of Burglary; two counts Robbery; and two counts Abduction. The court sentenced the applicant to incarceration with the Virginia Department of Corrections for the term of 20 years for Burglary, and 20 years for Robbery, and 20 years for Robbery and 20 years for Abduction and 20 years for Abduction. The total sentence imposed is 100 years. The sentences shall run consecutive with one another and consecutive with any other sentences imposed. The Court suspended all but 20 years of the sentence, for a period of 20 years, for a total suspension of all but 20 years, upon the following condition of good behavior and supervised probation for 20 years. The applicant was required to pay costs of $1877 plus attorney's fees. The defendant shall be given credit for time spent in confinement while awaiting trial. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The has been using time to better oneself and rebuild bridges with family and community. 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 600-85 defines the Limited Use Policy and states unless waived under the circumstances listed in paragraph 10-13d, Limited Use Policy prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to "Honorable" if protected evidence is used. Protected evidence under this policy includes: e. 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 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. (6) 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. (7) 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. f. 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). g. 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 applicant's DD Form 214 erroneously reflects "AR 635-200, PARA 14-12C; block 26, "JKQ." The applicant's discharge packet reflected in the applicant's AHMRR confirms the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14 SEC II, Misconduct (Civil Conviction). Soldiers processed for misconduct under these provisions will be assigned a Narrative Reason for Separation as Misconduct (Civil Conviction) and an SPD code of JKB. The applicant contends being diagnosed with bipolar manic depression. The applicant's AMHRR contains no documentation of Behavior Health diagnosis. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any medical condition. The AMHRR is void of a mental status evaluation. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends good service. The Board considered the service accomplishments and the quality of service. The applicant contends has been using time to better oneself and rebuild bridges with family and community. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 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 found that the applicant's record does not reflect that the applicant had any behavioral health diagnoses. However, the applicant asserts Bipolar Manic Depression, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant's Bipolar Manic Depression existed during the applicant's military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After applying liberal consideration, the Board's Medical Advisor determined that the applicant's asserted Bipolar Manic Depression does not mitigate the applicant's civil conviction for burglary, robbery, and abduction as there is no evidence in applicant's official medical record or provided by the applicant other than the applicant's testimony that supports the applicant's self-asserted Bipolar Disorder diagnosis. Further, the Board Medical Advisor determined that, despite the lack of evidence to support the applicant's asserted Bipolar Manic Depression diagnosis, Bipolar Disorder does not mitigate the applicant's civilian conviction for burglary, robbery, and abduction as there is no natural sequelae between Bipolar Disorder and the applicant's offenses of burglary, robbery, and abduction. (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 asserted Bipolar Manic Depression does not outweigh the applicant's medically unmitigated offenses burglary, robbery, and abduction. b. Response to Contention(s): (1) The applicant contends being diagnosed with Bipolar Manic Depression. The Board liberally considered this contention and determined, based on the Board Medical opine, that the applicant's asserted Bipolar Manic Depression does not outweigh the applicant's medically unmitigated offenses burglary, robbery, and abduction. The Board also considered the totality of the applicant's record, including applicant's asserted Bipolar Manic Depression, but determined that a discharge upgrade is not warranted based on the severity of the applicant's misconduct. (2) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with family issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant's conviction for burglary, robbery and abduction is not an acceptable response to dealing with family issues, thus the applicant was properly and equitably discharged. (3) The applicant contends good service. 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 getting convicted of burglary, robbery, and abduction, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends has been using time to better oneself and rebuild bridges with family and community. The Board considered this contention and determined that the applicant's post-service accomplishments do not outweigh the severity of the applicant's offenses of burglary, robbery, and abduction. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The Board found inconsistencies between the discharging paperwork and the applicant's DD Form 214, and has made administrative corrections as outlined below. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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, the applicant's the applicant's asserted Bipolar Manic Depression does not outweigh the applicant's medically unmitigated offenses burglary, robbery, and abduction. The Board also considered the applicant's contentions regarding the applicant's good service, family issues, post-service accomplishments and the applicant's asserted Bipolar Manic Depression and found that a discharge upgrade is not warranted due to the severity of the applicant's misconduct. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. Therefore, the applicant's Under Other Than Honorable Discharge was proper and equitable as the applicant's misconduct fell below that level of satisfactory service to warrant an upgrade to a General Discharge and meritorious service warranted for an upgrade to a Honorable Discharge. (2) The Board voted to make an administrative correction to the applicant's narrative reason to Misconduct (Civil Conviction), which matches the intent of the discharging authority. The SPD code associated with the new narrative reason is JKB. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: No Change c. Change Reason / SPD code to: Misconduct (Civil Conviction)/JKB d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14 SEC II 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 AR20210002545 1