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: 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, the current characterization of service is incorrect. The applicant cited prior discharge characterizations which occurred before the applicant’s reenlistment into the Army. In a records review conducted on 20 May 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: Court-Martial (Other) / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 1 April 2015 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 1, dated 11 September 2013, the applicant was found guilty of the following: Charge I, in violation of Article 109: the applicant did, at or near Osan Air Base, Republic of Korea, on 8 August 2012, willfully and wrongfully destroy by breaking into four pieces, a USAA debit card, of some value, the property of Private (E1) N.L.H. Charge II, in violation of Article 121: Specification 1: The applicant did, at or near Osan Air Base, Republic of Korea, on 8 August 2012, steal a white IPhone 3GS and a Nikon D3100 Series camera, of a value of more than $500, the property of Private First Class S.D.P. Specification 2: The applicant did, at or near Osan Air Base, Republic of Korea, on 8 August 2012, steal a USAA debit card, of some value, the property of Private (E1) N.L.H. Specification 3: The applicant did, Osan Air Base, Republic of Korea, on 8 August 2012, steal a set of Beats by Dr. Dre Headphones, of some value, he property of Private First Class I.M.W. Specification 4: The applicant did, Osan Air Base, Republic of Korea, on 8 August 2012, steal a Play Station 3 Max Payne 3 video game, of some value, the property of Private First Class J.E.C.S. Specification 5: The applicant did, at or near USAG-Yongsan, Republic of Korea, on 16 August 2012, steal: a Michael Kors’ purse, a children’s pink camouflage backpack, a Dora hairbrush, a pair of Sperry boat shoes, a pair of plaid shorts, and a pair of Safilo sunglasses, of some value, the property of AAFES. Specification 6: The applicant did, at or near Osan Air Base, Republic of Korea, on 15 August 2012 and 17 August 2012, steal: food from Popeye’s restaurant, food from Burger King restaurant, a Griffin survivor case, a 16 gigabyte iPad, a Viva 6-pack roll of paper towels, a 7.5 oz. bottle of melon liquid soap, and a bottle of dial soap, of some value, the property of AAFES. Charge III, in violation of Article 130: Specification 1: The applicant did, at or near Osan Air Base, Republic of Korea, on 8 August 2012, unlawfully enter Private First Class S.D.P.’s barracks room, room 435, building 1464, the property of the U.S. Army, with intent to commit a criminal offense, to wit larceny, therein. Specification 2: The applicant did, at or near Osan Air Base, Republic of Korea, on 8 August 2012, unlawfully enter Private (E1) N.L.H.'s barracks room, room 423, building 1464, the property of the U.S. Army, with intent to commit a criminal offense, to wit: larceny, therein. Specification 3: The applicant did, at or near Osan Air Base, Republic of Korea, on 8 August 2012, unlawfully enter Private First Class I.M.W.'s barracks room, room 426, building 1464, the property of the U.S. Army, with intent to commit a criminal offense, to wit: larceny, therein. Specification 4: The applicant did, at or near Osan Air Base, Republic of Korea, on 8 August 2012, unlawfully enter Private First Class J.E.C.S.’s barracks room, room 325, building 1464, the property of the U.S. Army, with Intent to commit a criminal offense, to wit: larceny, therein. Additional Charge I, in violation of Article 121: Specification 1: The applicant did, at or near Osan Air Base, Republic of Korea, on 8 August 2012, steal a Military Star Card and a Nintendo OS video game system, of some value, the property of Private First Class C.J.R. Specification 2: The applicant did, at or near Osan Air Base, Republic of Korea, on 8 August 2012, steal: food from Popeye's restaurant, three Visa pre-paid credit cards worth $100 each, an Army Combat Uniform jacket, a pair of Army Combat Uniform trousers, a pair of tan military boots, an Army Specialist rank tab, a carton of Newport brand cigarettes, of a value more than $500, the property of AAFES. Additional Charge II, in violation of Article 130, the applicant did at or near Osan Air Base, Republic of Korea, on 8 August 2012, unlawfully enter Private First Class C.J.R.’s barracks room, room 317, building 1464, the property of the U.S. Army, with intent to commit a criminal offense, to wit: larceny, therein. (1) Adjudged Sentence: Sentence adjudged on 13 December 2012: To be reduced to the grade of Private E1; to forfeit $994 pay per month for 10 months; to be confined for 10 months; and to be discharged from the service with a Bad-Conduct Discharge. (2) Date/Sentence Approved: 27 February 2015 / only so much of the sentence as provides for reduction to Private E-1, forfeiture of $994 pay per month for ten months, confinement for nine months, and a Bad-Conduct Discharge. (3) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (4) Date Sentence of BCD Ordered Executed: 27 February 2015 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 August 2006 / 3 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 14T10, Patriot Operator/ Maintenance / 8 years, 19 days d. Prior Service / Characterizations: RA, 22 August 2006 – 12 November 2008 / HD e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: AGCM-2, NDSM, KDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial as described in previous paragraph 3c. Personnel Action form, reflects the applicant’s duty status changed as follows: From “Confined by Civil Authorities (CCA)” to “Present for Duty (PDY),” effective 4 July 2013. Confinement Order, dated 13 December 2012, reflects the applicant’s rank reduction to E1, forfeiture of $994 pay per month for nine months, nine-months confinement, and Bad Conduct Discharge for violation of Articles 109, 121, and 130, UCMJ. Report of Result of Trial reflects the applicant was tried in a Summary Court-Martial on 13 December 2012. The applicant’s charges are as described in previous paragraph 3c. Sentence: Reduction of rank to E1, forfeiture of $994 pay per month for nine months, nine- months confinement, and Bad Conduct Discharge. Special Court-Martial Order Number 14, dated 27 February 2015, executing so much of the sentence as provides for reduction to Private E-1, forfeiture of $994 pay per month for ten months, confinement for nine months, and a Bad Conduct Discharge, adjudged on 13 December 2012, as promulgated by Special Court-Martial Order Number 1, dated 11 September 2013, as corrected by U.S. Army Court of Criminal Appeals Notice of Court- Martial Order Correction, dated 15 September 2014, having been finally affirmed. The adjudged forfeiture in the amount of $500 pay per month and the automatic forfeiture of pay required by Article 58b, UCMJ, were deferred effective 13 February 2013, and those deferments were terminated on 11 September 2013. That portion of the sentence extending to confinement has been served. Article 71(c) having been complied with, the Bad Conduct Discharge will be executed. i. Lost Time / Mode of Return: 6 months, 20 days (CMA, 13 December 2012 – 3 July 2013) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 293; Honorable Discharge Certificate (two); and oath of reenlistment. 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 service 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 the current characterization of service is incorrect. The applicant provided evidence of a discharge which occurred before the current period of review to support this contention. The AMHRR reflects a Special Court-Martial Order Number 14, dated 27 February 2015, executing so much of the sentence as provides for reduction to Private E-1, forfeiture of $994 pay per month for ten months, confinement for nine months, and a Bad Conduct Discharge. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran’s benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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. 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 DoD and VA medical records, applicant submissions and third party statements, and found the applicant was diagnosed with Adjustment Disorder, Unspecified Anxiety Disorder and Depression, which, in the opinion of the Board’s Medical Advisor, after applying liberal consideration, could potentially mitigate a discharge. (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 Adjustment Disorder, Unspecified Anxiety Disorder, and Depression. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined that the medical conditions of Adjustment Disorder, Unspecified Anxiety Disorder and Depression do not mitigate the applicant’s larceny. The Board's Medical Advisor opined that there is no association between applicant’s BH conditions and the misconduct that led to applicant’s separation since none of applicant’s conditions interfere with the ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board concurred with the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant’s medical conditions of Adjustment Disorder, Unspecified Anxiety Disorder and Depression completely outweighed the basis for applicant’s separation – larceny. b. Response to Contention(s): (1) The applicant contends the current characterization of service is incorrect. The Board voted after considering the contention and determine the applicant’s characterization is proper and equitable as the applicant’s Adjustment Disorder, Unspecified Anxiety Disorder and Depression do not mitigate applicant’s larceny. (2) The applicant contends an upgrade would allow educational benefits through the GI Bill. The Board 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. 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 Adjustment Disorder, Unspecified Anxiety Disorder and Depression did not excuse or mitigate the offenses of larceny. 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. 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 AR20210003001 1