1. Applicant's Name: a. Application Date: 7 August 2020 b. Date Received: 25 August 2020 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 general (under honorable conditions) and correction of the applicant's date of birth. b. The applicant states they regret the mistake they made and has learned from it. The applicant's grandmother passed away while the applicant was in advanced individual training and since the funeral was in another country the applicant was unable to attend. The applicant was assaulted by another Soldier and two other Soldiers rescued the applicant; however, the applicant was afraid to report it because the applicant was drinking while underage. Both events including getting pregnant was a lot for the applicant to deal with at the age of 19. c. Board Type and Decision: In a records review conducted on 3 November 2023, and by a 5-0 vote, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, the Board determined that clemency is warranted based on discharge too harsh for the misconduct. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General. 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: 2 September 2005 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 14, 12 September 2003, on 1 August 2003, the applicant was found guilty of the following: Charged with violation of Article 121: (a) Specification 1: Between 14 March 2003 and 17 March 2003, stole an Automated Teller Machine (ATM) card and a piece of paper containing the personal identification number (PIN) or access code thereto of some value, the property of Private (PVT) A__ A. T__. Plea: Guilty. (On Motion of the trial counsel, the military judge amended the specification prior to the pleas by deleting the words "and a piece of paper containing the personal identification number (PIN) or access code thereto." There was no objection by the Defense). Finding: Guilty. (b) Specification 2: Between 14 March 2003 and 17 March 2003, stole currency of a value of more than $500.00, the property of PVT T__. Plea: Guilty. Finding: Guilty. (2) Adjudged Sentence: Reduction to E-1; to be discharged from the service with a Bad Conduct discharge, and to be confined for 3 months. (3) Date / Sentence Approved: 12 September 2003 / Only so much of the sentence, a reduction to E-1, a bad conduct discharge and confinement for 3 months 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 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. (5) Date Sentence of BCD Ordered Executed: 9 July 2004 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 January 2000 / 4 years b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92A10, Automated Logistical Specialist / 5 years, 4 months, and 28 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) Special Court-Martial Order as described in previous paragraph 3c. (2) The applicant provided three developmental counseling forms for March, April, July, and October 2002 monthly performance. In part, the applicant was dependable, accomplished tasks, trained another Soldier, took initiative around the office, and enrolled in college. (3) Two Personnel Action forms, shows the applicant's duty status changed as follows: * From Present for Duty (PDY) to Confined by Military Authorities (CMA) effective 1 August 2003; and * From PDY to CMA, effective 16 October 2003 (4) The applicant's DD Form 214, reflects the applicant had completed the first full term of service. The applicant was discharged under the authority of AR 635-200, chapter 3, with a narrative reason of Court-Martial, Other. The DD Form 214 was not authenticated with the applicant's electronic signature. The applicant had lost time for the period 1 August 2003 to 16 October 2003. The applicant was reduced from E-4 to E-1 effective 15 August 2003. i. Lost Time / Mode of Return: 2 months and 10 days (CMA, 1 August 2003 - 10 October 2003) / Released from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; self-authored statement; three counseling; e-mail; three character references. 6. POST SERVICE ACCOMPLISHMENTS: Received a $50 award from work for customer service and experience. 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 3-7b 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. (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) 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 waiverable and nonwaiverable separations. Table 3-1, defines RE codes: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE-3 Applies to: 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. (3) 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. a. The applicant requests an upgrade to general (under honorable conditions) and correction of the applicant's date of birth. The applicant's AMHRR, the issues, and documents submitted with the application were carefully reviewed. b. The applicant's AMHRR indicates the applicant was adjudged guilty by a court-martial for violating Article 121 by stealing a Soldier's ATM card and currency of a value of more than $500.00 and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. c. 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. d. The applicant's AMHRR includes partial facts and circumstances concerning the events which led to the discharge from the Army. The applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's electronic signature. The applicant's DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 3, by reason of Court- Martial (Other), with a characterization of service of bad conduct. e. The applicant requests correction to the applicant's date of birth on the DD Form 214. The applicant's requested change to the DD Form 214 does not fall within this Board's purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. f. The third party statements provided with the application speak highly of the applicant. g. Analyst notes blocks 11 (Primary Specialty) and 12f (Foreign Service) of the applicant's DD Form 214 has administrative irregularities as follows: (1) Block 11 (Primary Specialty) 92A10, Automated Logistical Specialist, 0 years and 0 months. (2) AR 635-5, paragraph 2-4h (11) states from the enlisted record brief, enter the titles of all military occupation specialties (MOS) served for at least 1 year and include for each MOS the number of years and months served. For time determination, 16 days or more count as a month. Do not count basic training and advanced individual training. (3) Block 12f (Foreign Service), shows see block #18. Block 18 (Remarks) does not reflect information pertaining to block 12f. (4) AR 635-5, paragraph 2-4h (12)(f) states from the enlisted record brief, enter the total amount of foreign service completed during the period covered in block 12c (Net Active Service this Period). (5) This does not fall within this Board's purview; however, the applicant may apply to the ABCMR, using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. h. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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? No. The Board's Medical Advisor, reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. The applicant's assertion of assault does not mitigate the financially based misconduct of stealing an ATM card, a pin and >$500 currency given that assault does not affect one's ability to distinguish right from wrong and act in accordance with the right. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): The applicant did not make any contentions or provide any evidence to support that the discharge was improper or inequitable. c. The Board determined after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, that clemency is warranted based on discharge too harsh for the misconduct. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General. 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 asserted and referenced an incident of assault in the application but provided no evidence or details as to the nature of the assault. The Board recommends the applicant elaborate on the nature of the assault should they decide to apply for an upgrade to Honorable through 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 to change the applicant's characterization of service to General based on the applicant's length, prior service, elapsed time since the discharge and post service accomplishments. The Board determined that the discharge was too harsh for the misconduct. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Serious Offense) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKQ. (3) The Board voted to change the reentry code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD Code to: Misconduct (Serious Offense) /JKQ d. Change RE Code to: No Change e. Change Authority to: AR 635-200 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 AR20210007169 1