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 general (under honorable conditions). The applicant requests an honorable. The applicant seeks relief contending, in effect, he was battling with mental health and alcohol use which lead him to make life altering choices. The applicant was a gay man who was diagnosed with human immunodeficiency virus (HIV) during this time. The applicant could not reach out for help with dealing with his sexuality or his status for fear of the Don't Ask Don't Tell policy. As a result, the applicant turned to drinking and trying to help cope with his issues. Since then, the applicant has not had a drink and he is looking to return to school and become a physician assistant to help the lesbian, gay, bisexual, and transgender (LGBT) community focus on positive expression to help cope with post-traumatic stress disorder and trauma. He deployed successfully to Afghanistan in support of Operation Enduring Freedom and would love to do it again. In a records review conducted on 16 December 2021, 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: Misconduct (Serious Offense) / AR 635-200 / Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 13 August 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 July 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was AWOL from 25 September to 26 September 2007; on diverse occasions between 24 October and 9 November 2007, the applicant unlawfully entered a room with the intent to commit larceny; between 24 October and 7 November 2007, the applicant stole a USAA Platinum MasterCard from Specialist (SPC) K.Z.; and, on diverse occasions between 7 November and 20 November 2007, the applicant stole funds from the same USAA Platinum MasterCard, of a value of $1,301.23, and in order to complete the larceny, with the intent to defraud, the applicant made the signature of SPC K.Z. as an indorsement of those credit card charges. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: Undated (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 26 July 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 July 2005 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / 74D10, Chemical Operations Specialist / 3 years, 16 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (11 March 2006 - 8 March 2007) f. Awards and Decorations: ARCOM, NDSM, ACM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Summons for Unlawful Detainer (Civil Claims for Eviction), dated 19 September 2007, shows the applicant was to appear in civil court due to unpaid rent and an unpaid utility bill. Involuntary Allotment Application, dated 25 January 2008, shows the allotment was initiated due to a judgment against the applicant in the total amount of $8102.73. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective date 25 September 2007; From "Absent without leave" to "Present for Duty," effective date 26 September 2007. CG Article15, dated 17 October 2007, for without authority, absenting himself from his unit (from 25 to 26 September 2007) and with intent to deceive, making a false official statement to Sergeant R.N., to wit: "I have an eye appointment this morning at either 0735 or 0800." The punishment consisted of reduction to E-3 (suspended); forfeiture of $200 pay; extra duty for 14 days; and an oral reprimand. CID Report of Investigation - Final, dated 12 December 2007, reflects an investigation determined the applicant entered SPC K.Z.'s barracks room by prying open the window and stole her USAA Platinum MasterCard; made numerous purchases at retail stores, restaurants, and gas stations and forged SPC K.Z's signature on the transactions (between 24 October and 20 November 2007). The total loss to SPC K.Z. was $1301.23. CID Report of Investigation - Final, dated 27 December 2007, further reflects the applicant paid SPC K.Z. $1200 for the funds he stole using her credit card (1 December 2007). Record of Supplementary Action Under Article 15, UCMJ, dated 13 December 2007, reflects the suspended portion of the punishment imposed on 17 October 2007, was vacated for Article 121, stealing monies of a value of over $500, the property of USAA. FG Article 15, dated 18 April 2008, for being indebted to Chapel Lakes Apartments Association LP in the sum of $8,102.73 (from 1 August to 16 October 2007); for on diverse occasions unlawfully entering a room, the property of the U.S. Army, with intent to commit a criminal offense, larceny (between 24 October and 9 November 2007); stealing a USAA Platinum MasterCard of a value of $1, the property of SPC K.Z. (between 24 October and 7 November 2007); on diverse occasions, stealing funds from a USAA Platinum MasterCard of a value of $1,301.23, the property of SPC K.Z. (between 7 November and 20 November 2007); on diverse occasions, with intent to defraud, making a signature of SPC K.Z. as an indorsement to certain credit card charges (between 7 November and 20 November 2007); and, without authority, absenting himself from his unit (from 25 September to 26 September 2007). The punishment consisted of a reduction to E-1; forfeiture of $843 pay per month for two months; and, extra duty and restriction for 45 days. Report of Mental Status Evaluation, dated 12 June 2008, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in the proceedings and was mentally responsible. Three Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 1 day: (AWOL, 25 September - 25 September 2007) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 27 February 2008, the examining medical physician noted in the comments section: Depression since returning from deployment October 2007; follow-up by mental health clinic by-weekly. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3, prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. (7) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 635-5-1, Separation Program Designator (SPD) Codes, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-3 applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends he was diagnosed with HIV and used alcohol to cope which led to his behavior and ultimately his discharge. The applicant's AMHRR contains documentation which supports a diagnosis of in-service depression. The record shows the applicant underwent a mental status evaluation (MSE) on 12 June 2008, which indicates the applicant could understand and participate in the proceedings; was mentally responsible; and was cleared for any administrative actions deemed appropriate by the command. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant contends an upgrade would allow educational benefits through the GI Bill to become a physician assistant. 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. The applicant contends he successfully deployed to Afghanistan. The Board considered the service accomplishments and the quality of service. The applicant desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of "3." There is no basis upon which to grant a change to the reason or the RE code. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. 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 record and determined the applicant was diagnosed with in-service Major Depressive Disorder that may mitigate the basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant had a Major Depressive Disorder during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor opined the applicant's Major Depressive Disorder does not have a nexus with the misconduct that led to applicant's separation since this medical condition does not affect one's ability to distinguish wrong from right and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's non-medically mitigated offenses of AWOL, unlawfully entered a room with the intent to commit larceny, stole a credit card, defraud, and signature forgery outweighed the applicant's BH diagnosis of Major Depressive Disorder for the reasons listed in (3) above. b. Response to Contention(s): (1) The applicant contends he was diagnosed with HIV and used alcohol to cope which led to his behavior and ultimately his discharge. The Board determined that the applicant was discharged for AWOL, unlawfully entered a room with the intent to commit larceny, stole a credit card, defraud, and signature forgery. Contrary to applicant's contention, the Board concluded the evidence did not support applicant's basis of separation had any nexus with applicant's HIV diagnosis nor alcohol usage. (2) The applicant contends an upgrade would allow educational benefits through the GI Bill to become a physician assistant. 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 assistance. c. The Board determined 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, the applicant's BH diagnoses of Major Depressive Disorder did not mitigate the offenses of AWOL, unlawfully entered a room with the intent to commit larceny, stole a credit card, defraud, and signature forgery. Applicant's Major Depressive Disorder was not associated with applicant's misconduct that led to his separation since this condition does not affect one's ability to distinguish wrong from right and act in accordance with the right. Further, the Board found the evidence supported a conclusion that the applicant's 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 AR20210003323 1