1. Applicant’s Name: a. Application Date: 25 July 2020 b. Date Received: 5 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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge was because of a criminal conviction when the applicant was in civilian status. The applicant’s military service was honorable. The applicant was not court-martialed or ever been in front of a judge advocate. The applicant’s service was clean. b. Board Type and Decision: In a records review conducted on 2 August 2023, 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: Acts or Patterns of Misconduct under the UCMJ, State Military Code, or Similar Laws / NGR 600-200, Paragraph 6-35i(1) / NA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 18 December 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF / The applicant was provided 45 days to respond to the notification of separation, dated 8 July 2014. (2) Basis for Separation: The Notification of Separation reflects the applicant was being recommended for separation under AR 135-178, Chapter 12, paragraph 1e, for the following reason: The applicant was unqualified for further military service by reason of a civil conviction. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (5) Administrative Separation Board: The applicant failed to respond to the notification of separation, thereby waiving right to an administrative separation board. (6) Separation Decision Date / Characterization: 11 December 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 April 2010 / 7 years, 40 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25B10, Information Technology Specialist / 4 years, 10 months d. Prior Service / Characterizations: ARNG, 19 February 2010 – 13 April 2010 / NA IADT, 14 September 2010 – 22 June 2011 / HD (Concurrent Service) e. Overseas Service / Combat Service: f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA Disciplinary Action(s) / Evidentiary Record: Report to Suspend Favorable Actions (FLAG), dated 29 November 2012, reflects the applicant was flagged for Adverse Action (AA). Sworn statement, date 4 August 2014, reflects the memorandum, subject: Notification of Separation, Under AR 135-178, Chapter 12 (Administrative Board Procedure), dated 8 July 2014, was mailed to the applicant via certified mail on 4 August 2014. Certified Mail Receipt, reflects on 6 August 2014, the applicant’s agent signed for a package addressed to the applicant. Commander’s Report, dated 4 September 2014, reflects the applicant had multiple civil convictions for Felony charges some of which were for theft of military property. Memorandum, subject: Recommendation for Separation, [Applicant], (Chapter 12 – Civil Conviction), dated 6 November 2014, reflects the Commander, 28th Infantry Division, recommended an Under Other Than Honorable Conditions characterization of service. The applicant pled guilty and was convicted by Blair County Court of Common Pleas of theft by Unlawful Taking (Felony 3), Alteration or Destruction of VIN (Felony 3, two counts); Disposition of Vehicle with Altered VIN (Felony 3, two counts); Corruption of Minors (Misdemeanor 1); Unauthorized Use of Motor Vehicle (Misdemeanor 2); and False Statement (Misdemeanor 3). The applicant was sentenced to be incarcerated for 292 days to 23 months. NGB Form 22, dated 18 December 2014, reflects the applicant was separated from the Army National Guard of Pennsylvania and as a Reserve of the Army under the provisions of NGR 600-200, 6-35(1) for Acts or patterns of misconduct under the UCMJ, State Military Code or similar laws with an Under other than Honorable Conditions discharge, and Reenlistment Eligibility, RE-3. h. Lost Time / Mode of Return: NIF j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; separation documents, to include the Notification of Separation Proceedings. 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 135-91 states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills accrue during a one-year period and attempts to have the Soldier respond or comply with orders or correspondence have resulted in - the Soldier’s refusal to comply with orders or correspondence; or a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; or verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed. Discharge action may be taken when the Soldier cannot be located or is absent in the hands of civil authorities in accordance with the provisions of AR 135-91, paragraph 2-18, and Chapter 3, section IV, of AR 135-178. e. Army Regulation 135-178 prescribes the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) Paragraph 2-9a prescribes an honorable characterization 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. (2) Paragraph 2-9b, prescribes, if a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier’s conduct or performance of duty outweigh positive aspects of the Soldier’s military record. (3) Paragraph 2-9c, prescribes the service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons, and under other circumstances. (4) Chapter 11 (previously Chapter 12), provides in pertinent part, a Soldier may be discharged for misconduct when it is determined under the guidance set forth in chapter 2, section I, that the Soldier is unqualified for further military service by reason of one or more of the following circumstances: Minor disciplinary infractions; A pattern of misconduct; Commission of a serious offense; Abuse of illegal drugs or alcohol; and Civil conviction. (5) Paragraph 11-1b, states a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline include conduct which violates the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. (6) Paragraph 11-8, prescribes a characterization of service normally will be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted under the guidelines in chapter 2, section III. When characterization of service under other than honorable conditions is not warranted for a Soldier in entry level status under chapter 2, section III, the service will be described as uncharacterized. f. National Guard Regulation (NGR) 600-200, establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers in the functional areas of: Classification and Reclassification; Personnel Management; Assignment and Transfer, including interstate transfer; Special Duty Assignment Pay; Enlisted Separations; and Command Sergeant Major Program. (1) Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. (2) Paragraph 6-25, prescribes the discharge of Soldiers on active duty, (Title 10, USC) in AGR, IET, ADT, and ADOS status, as well as those ordered to active duty for contingency operations or under mobilization conditions, is governed by AR 635-200. All Outside Continental United States (OCONUS) training, including AT is conducted in Title 10 ADT status. Refer to AR 135-178 when considering enlisted Soldiers not on active duty and those on full-time National Guard duty (FTNGD) under Title 32 USC for discharge from the ARNG and as a Reserve of the Army. (3) Paragraph 6-35i(1) defers to AR 135-178, chapter 11 (previously chapter 12), for the following reasons for discharge: Acts or patterns of misconduct under the UCMJ, State Military Code, or similar laws: This includes abuse of illegal drugs to include testing positive, 2 serious incidents of alcohol-related misconduct within a 12-month period, IAW AR 600-85, chapter 10, involved in illegal trafficking, distribution, possession, use or sale of illegal drugs and convicted of driving while intoxicated or driving under the influence a second time during their career. All Soldiers identified as abusers of illegal drugs will be referred for treatment as appropriate regardless of the commander’s intent to take administrative, nonjudicial, or judicial actions. Commanders must initiate separation action within 45 days of the act or referral, regardless of the commander’s recommendation. Recommendations for retention or separation will be forwarded through command channels to the separation authority. See AR 135-178, chapter 2, when the discharge authority decides to retain and as a condition of retention, enroll in a rehabilitation program as soon as possible. Enrollment and participation will be at no expense to the government. Commanders will immediately begin discharge actions for Soldiers who refuse or fail to enroll in a rehabilitation program because of committing a drug offense. RE 3 or 4. LC: AD (Drug abuse) or MM (Misconduct) RE 3 or 4. 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 Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. Based on the AMHRR, someone in the discharge process erroneously entered on the applicant’s NGB Form 22, block 23, Authority and Reason as “NGR 600-200, 6-35i(1), Acts or Patterns of Misconduct under the UCMJ, State Military Code, or Similar Laws.” The discharge packet confirms the separation authority approved the discharge under the provisions of AR 135-178, Chapter 12, Misconduct (Civil Conviction). Soldiers processed for misconduct under these provisions will be assigned Authority and Reason as NGR 600-200, Paragraph 6-35i(2), Conviction by Criminal Court, equivalent to AR 135-178, Paragraph 12-1e, Civil Conviction. The applicant contends the crimes were committed while in a civilian status and the applicant’s military service was honorable. The applicant’s AMHRR reflects the applicant was enlisted in the Pennsylvania Army National Guard at the time of the conviction. Army Regulation 135-178, Chapter 12, provides a Soldier may be discharged for misconduct when it is determined the Soldier is unqualified for further military service by various reasons, which includes conviction by civil court. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28 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. (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 contends the crimes were committed while in a civilian status and the applicant’s military service was honorable. The Board considered this contention but found insufficient evidence in the applicant’s AMHRR or applicant-provided evidence to support that the applicant’s separation for a civilian conviction was improper or inequitable. Therefore, a discharge upgrade is not warranted. c. The Board determined that the discharge is, at this time, proper and equitable, considering 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 the Board Medical Advisor found that the applicant did not hold an in-service behavioral health condition that would excuse or mitigate the applicant’s civilian conviction basis of separation. The Board also considered the applicant's contention good service and found that the totality of the applicant's record does not warrant a discharge upgrade. 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 Conditions discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or meritorious service warranted for an upgrade to Honorable discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, 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. 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 AR20210007380 1