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 bad conduct. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, throughout the applicant's military career, the applicant never had been in trouble. The extra money the applicant received was paid back to the Army in full prior to the final appeal process. During the period of the offense, the applicant was legally separated and going through a long divorce process from the spouse and the applicant was experiencing PTSD issue from the divorce and from combat. The applicant had already processed through a medical board for PTSD. It has been difficult for the applicant to obtain a job to survive in today's environment/economy because of the discharge. b. Board Type and Decision: In a records review conducted on 9 August 2022, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general, under honorable conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. 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: Court-Martial (Other) / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 7 March 2016 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 5, dated 13 March 2014, on 7 March 2014, the applicant was found guilty of the following (inclusive with substituted words): Charge I, in violation of Article 107: The Specification: The applicant did [at a military installation in Korea], between on or about 1 July 2010 and 15 June 2011, with intent to deceive, sign an official document, to wit: DD Form 1351-2, which document was false in that the residence listed for the applicant's dependents was [a stated address] in New York, NY 10022, and was then known by the applicant to be so false. Charge II, in violation of Article 121: The Specification: Did [at a military installation in Korea], on divers occasions between on or about 11 June 2010 and on or about 10 July 2011, steal Basic Allowance for Housing (BAH), Cost of Living Allowance (COLA), and Dislocation allowance (DLA), of a value of about $26,408.51, the property of the United States Government. (2) Adjudged Sentence: To be confined for 90 days, and to be discharged from the service with a Bad Conduct discharge. (3) Date / Sentence Approved: 13 May 2014 / Only so much of the sentence, confinement for a period of one month, and a bad conduct discharge was approved and, except for the part of the sentence extending to a bad conduct discharge, would be executed. (4) Appellate Reviews: The record of trial being forwarded to The Judge Advocate General of The Army for review by the Court of Military Review and The United States Army Court of Criminal Appeals affirmation of the approved findings of guilty and the sentence were NIF. (5) Date Sentence of BCD Ordered Executed: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 May 2012 / Indefinite b. Age at Enlistment / Education / GT Score: 19 / HS graduate / 116 c. Highest Grade Achieved / MOS / Total Service: E-6 / 11B10, Infantryman / 14 years, 7 months, 14 days d. Prior Service / Characterizations: RA, 28 June 2001 - 28 December 2003 / HD RA, 29 December 2003 - 15 June 2005 / HD RA, 16 June 2005 - 29 June 2007 / HD RA, 30 June 2007 - 16 May 2012 / HD e. Overseas Service / Combat Service: Germany, Korea, SWA / Iraq (23 January 2003 - 20 September 2003; 3 November 2006 - 14 December 2014) f. Awards and Decorations: ARCOM-4, AAM-4, AGCM-3, NDSM, ICM-2BSS, GWOTEM, GWOTSM, KDSM, NCOPDR-2, ASR, OSR-4, MUC, PUC, CIB g. Performance Ratings: 1 June 2007 - 9 February 2008 / Fully Capable 10 February 2008 - 9 February 2009 / Fully Capable 10 February 2009 - 9 February 2010 / Among the Best 10 February 2010 - 14 May 2010 / Among the Best 15 May 2010 - 13 May 2013 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)," effective 7 March 2014; From "CMA" to "PDY," effective 2 April 2014. Memorandum, dated 7 August 2013, disapproved the award of AGCM for period 26 June 2013 to 25 June 2013, because of an impending law enforcement investigation and adverse action under the UCMJ. CG Article 15, dated 20 October 2010, for being disrespectful in language toward an NCO, SFC J. D. E. (18 September 2010), and wrongfully communicating a threat to an NCO, SFC J. D. S. (18 September 2010). The punishment consisted of a forfeiture of $644 pay (suspended); and extra duty and restriction for 7 days. i. Lost Time / Mode of Return: 27 days: (CMA, 7 March 2014 - 2 April 2014) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: Informal Physical Evaluation Board (PEB) Proceedings, dated 14 May 2013, reflect the following diagnosis: Posttraumatic Stress Disorder with comorbid adjustment disorder; Status post left wrist scapholunate dissociation with residual scar and strain; Right knee degenerative arthritis. The PEB also considered the MEB (Medical Evaluation Board) "Diagnoses 4, 5, and 7-18 (cognitive disorder; major depressive disorder; post-concussion syndrome with migraine headaches; left knee infrapatellar tendonitis; bilateral regular astigmatism; right knee infrapatellar tendonitis; left knee degenerative arthritis; right ankle posterior tibial tendonitis; right shoulder labral tear; right toe onychomycosis; left toe onychomycosis; tinea pedis; folliculitis back and shoulders; and healed laceration with scar left infraorbital area) are not associated with profile limitations and do not impact the Soldier's ability to perform any one of the ten functional activities. See DA Form 3349, physical profile. The MEB has indicated these conditions meet medical retention standards. Therefore, these conditions are not unfitting." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Form 214; Winn-ACH Psychiatric Medical Evaluation Board; Medical Evaluation Board Proceedings; and Department of Veterans Affairs Disability Evaluation System Proposed Rating Decision. 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), dated 25 September 2019, 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 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing SJA. 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 "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial (other). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's Army Military Human Resource Record (AMHRR) indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant contends throughout the applicant's military career, the applicant had never been in trouble. The extra money the applicant received was paid back to the Army in full prior to the final appeal process. The Board considered the service accomplishments and the quality of service. The applicant contends family issues affected behavior and ultimately caused the discharge. The applicant explains during the period of the offenses, the applicant was legally separated and going through a long divorce process from the spouse. 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 the applicant was experiencing PTSD issues from the divorce and combat. The applicant's AMHRR contains documentation which supports a diagnosis of in- service PTSD with comorbid adjustment disorder. The applicant also provided a VA Disability Evaluation System Proposed Rating which indicates the applicant was "assigned a 50 percent evaluation" for the applicant's PTSD, "major depression, adjustment disorder with anxiety, cognitive disorder NOS, and post-concussion syndrome (also claimed as insomnia, sleep disturbance, and traumatic brain injury)." The applicant contends it has been difficult for the applicant to obtain a job because of the discharge, and an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. 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: records contain in-service BH diagnoses of Adjustment Disorder, Anxiety Disorder, Depression, and PTSD, Personality Disorder, Mild-cognitive impairment, and Major Depressive Disorder.. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found records contain in-service BH diagnoses of Adjustment Disorder, Anxiety Disorder, Depression, and PTSD. VA records have additional Post-service BH diagnoses of Personality Disorder, Cannabis Use, Alcohol Abuse, Mild cognitive impairment, and Major Depressive Disorder. The applicant is 80% service connected, 30% for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that while the applicant has a BH diagnosis of PTSD it is not a mitigating factor for applicant's misconduct. Stealing on multiple occasions BAH, COLA, and DLA pay and falsely listing dependent's address is not part of the sequela of symptoms associated with PTSD. Rather these are conscious and willful actions carried out over time. (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 available evidence did not support a conclusion that the applicant's Adjustment Disorder, Anxiety Disorder, Depression, PTSD, Personality Disorder, Cannabis Use, Alcohol Abuse, Mild cognitive impairment, and Major Depressive Disorder outweighed the basis for applicant's separation - stealing on multiple occasions BAH, COLA, and DLA pay and falsely listing dependent's address. b. Response to Contention(s): (1) The applicant contends throughout the applicant's military career, the applicant has never been in trouble, and the extra money the applicant received was paid back to the Army in full prior to the final appeal process. The Board considered this contention determined a bad conduct discharge was too harsh and voted to upgrade the applicant's discharge to general, under honorable conditions based on the applicant's length and quality of service, to include combat service. However, the Board further determined that an Honorable discharge was not supported by the evidence of record. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, given the nature of the misconduct, including stealing on multiple occasions BAH, COLA, and DLA pay and falsely listing dependent's address, was not sufficiently meritorious to warrant an Honorable discharge. (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 stealing on multiple occasions BAH, COLA, and DLA pay, and falsely listing dependent's address is not an acceptable response to dealing with family issues. However, the Board determined a bad conduct discharge was inequitable and voted to upgrade the applicant's discharge to general, under honorable conditions. (3) The applicant contends the applicant was experiencing PTSD issues from the divorce and combat. The Board considered this contention and determined that given the nature of the misconduct, stealing on multiple occasions BAH, COLA, and DLA pay and falsely listing dependent's address is not mitigated by the applicant's PTSD as the misconduct is not part of the sequela of symptoms associated with PTSD. The Board however, found the current characterization of service is inequitable and voted to upgrade to General, Under Honorable Conditions due to the aforementioned reasoning. (4) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. c. The Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (OBHI and PTSD diagnoses). Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general, under honorable conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. However, the applicant may request a personal appearance hearing to address further issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to general, under honorable conditions because the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (OBHI and PTSD diagnoses) outweighed the applicant's misconduct of stealing on multiple occasions BAH, COLA, and DLA pay and falsely listing dependent's address. Thus, the prior characterization is no longer appropriate. However, due to the nature and severity of the applicant's misconduct the Board further determined that a partial upgrade to GD is proper as overall the applicant's service fell below that level of meritorious service warranted for an upgrade to HD. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210002650 1