1. Applicant’s Name: a. Application Date: 15 November 2021 b. Date Received: 18 November 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 under other than honorable conditions. The applicant requests an upgrade to a general (under honorable conditions). b. The applicant seeks relief contending, in effect, they was not informed of the nature of the forms that they were signing; they were told by their military defense counsel to sign with no explanation. The applicant agrees they were insubordinate to their superior officer; however, they did not do or say some of the things that they were charged with. c. Board Type and Decision: In a records review conducted on 6 December 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other than Honorable Conditions b. Date of Discharge: 29 March 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: Pursuant to the applicant’s request for voluntary discharge under provision of AR 635-200, Chapter 10, In Lieu of Trial by Court-Martial. (3) Recommended Characterization: NIF (4) Legal Consultation Date: 5 March 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 March 2007 / Under Other than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 March 2005 / 3 years, 20 weeks b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92G10 Food Service Operation / 1 year, 9 months and 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None (1 year, 6 months, 10 days) f. Awards and Decorations: NDSM, GWOTSM, KDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) On 25 February 2005, the applicant enlisted in the United States Army Reserve’s Delayed Entry Program; on 9 March 2005, they enlisted in the Regular Army for 3 years and 20 weeks as an PV2. (2) The Enlisted Record Brief provides the applicant promoted to PFC on 9 March 2006; a Suspend Favorable Personnel Actions (FLAG) was flagged on 26 December 2006 for adverse action (AA). (3) On 10 January 2007, the applicant wrote an email to their battalion commander. The email states how remorseful they are for their actions, stating they were going through hard times and needed help, realizing it was up to them to seek it. They were trying to make their marriage work and give their spouse what they needed but the money and respect was not there. While trying so hard as a Soldier, spouse, and a family member, they were not thinking about the impact of their actions. Since their father left them as a child, they have had to step up and help their mother take care of their sisters. They came to the Army trying to make a new life, never thought they would make it this far and let people down. The applicant wanted to remain in the Army and make it up to their command, however, they wanted to give up so badly and just run away from their responsibilities, although, they knew that would cause further problems. They stated from the bottom of their heart forgive them for losing their Army values, for the problems they caused, and for letting down the commander. (4) On 5 February 2007, the applicant was placed in pretrial confinement found to be in violation of Articles 121 (wrongful appropriation) and 86 (absent without leave), UCMJ, not a result of nonjudicial punishment (NJP) or a court-martial. (5) On 5 March 2007, a sworn statement from the applicant’s spouse states they gave $235 to CPT to repay the money the applicant took from the Dining Facilities Administration Center (DFAC) facility safe at Camp Eagle, Republic of Korea. (6) On 5 March 2007, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulations 635-200, chapter 10, discharge in lieu of trial by court-martial. In their request, they affirmed no one had subjected them to coercion, and counsel had advised them of the implications of their request. The applicant further acknowledged they were guilty of the charge against them or a lesser one and they elected not to submit a statement on their behalf. On the same day, the defense counsel endorsed the applicant’s voluntary request for discharge acknowledging they were counseled on the possible effects of an under other honorable conditions characterization of service. (7) On 7 March 2007, the defense counsel forwarded their support statement for the applicant’s voluntary request for discharge through the chain of command, which requested they approve the administrative discharge in lieu of court-martial proceedings. Counsel identified the applicant was charged with failing to report to their appointed place of duty, being absent from their unit, stealing and making a false official statement. (a) A sworn statement from [redacted] states before the applicant was absent from their unit on 26 December 2006, they escorted the applicant to the ATM machine. The applicant told them they had to repay SPC for the money the applicant took from the Wings of Eagle Dining Facility safe at Camp Eagle, Republic of Korea. They escorted the applicant, saw the applicant go inside the administrative office of the DFAC to repay the money. They did not personally see the money exchange hands because they closed the door. It is standard operating procedure to close the door of the administrative office when the safe is open. (b) A sworn statement from [redacted] states they received from CPT, $235 on behalf of the applicant in repayment of the money they took from the Wings of Eagle Dining Facility safe at Camp Eagle, Republic of Korea. (c) The applicant wanted to return to their unit while they were absent without leave; however, they were scared. Their efforts served noticed to their potential for rehabilitation; this is evident in the email they sent to their battalion commander, LTC, that asks for forgiveness for their actions and for letting the battalion commander down. The applicant accepted ownership of their mistake and wanted to fix their problems with a fresh start. Counsel stated the $434 the applicant took was repaid ($200 paid in January 2007 and the remaining $234 was paid March 5, 2007) resulting in the government no longer suffering injury. The applicant agrees they needed to be punished for their actions; being placed in pretrial confinement and an administrative discharge in lieu of court-marital is adequate punishment in this case. (8) On 16 March 2007, the appropriate approval authority approved the separation and directed the applicant be discharged with a Under Other than Honorable Conditions characterization of service. (9) On 21 March 2007, they were released due to their confinement no longer deemed necessary. (10) A DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant was discharged accordingly on 29 March 2007, with 1 year, 9 months, and 26 days. The applicant has not completed the first full term of service. i. Lost Time / Mode of Return: 85 days * AWOL, (26 December 2006 – 4 February 2007) Returned to Military Control * Pretrial Confinement (PTC), 5 February – 20 March 2007 / Confined by Military Authorities (CMA) j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge). 6. POST SERVICE ACCOMPLISHMENTS: None submitted with 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) 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. (2) 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. (3) An 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. (4) Chapter 10, Discharge in Lieu of Trial by Court Martial is applicable to members who committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general was authorized, an under other than honorable conditions discharge was considered appropriate, unless the record was so meritorious it would warrant an honorable. After receiving legal counseling, the soldier may elect to submit a request for discharge in lieu of trial by court-martial. The soldier will sign a written request, certifying that they have been counseled, understands their rights, and may receive a discharge under other than honorable conditions. The following will accompany the request for discharge: * A copy of the court-martial Charge Sheet (DD Form 458) * Report of medical examination and mental status evaluation, if conducted * A complete copy of all reports of investigation * Any statement, documents, or other matter considered by the commanding officer in making their recommendation, including any information presented for consideration by the soldier or consulting counsel * A statement of any reasonable ground for belief that the soldier is, or was at the time of misconduct, mentally defective, deranged, or abnormal. When appropriate, evaluation by a psychiatrist will be included. (5) 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 “KFS” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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: (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. g. Manual for Courts-Martial (1984 Edition), United States, states military law consists of the statutes governing the military establishment and regulations issued thereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders. Military law includes jurisdiction exercised by courts-martial and the jurisdiction exercised by commanders with respect to nonjudicial punishment. The purpose of military laws is to promote justice, to assist in maintaining good orders and discipline in the Armed Forces. (1) Article 121 (wrongful appropriation) states in subparagraph wrongful appropriation of a value more than $100.00, the maximum punishment consists of bad-conduct discharge, forfeiture of all pay and allowances and confinement for 6 months. (2) Article 86 (absence without leave) states in subparagraph being absent without leave for more than 30 days, the maximum punishment consists of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. h. Army Regulation 631-10 (Absence, Without Leave, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings) provides policies and procedures for reporting unauthorized absentees and deserters, the administering of absent without leave (AWOL) personnel and deserters, returning absentees and deserters to military control and the surrendering of military personnel to civilian law enforcement authorities. When a soldier returns from an absence that is or appears to be unauthorized, the unit commander informally investigates whether disciplinary action should be taken and if the soldier be charge with time lost. (1) Classification of an absence is dependent upon such factors as the following: * Order and instructions, written/oral, the Soldier received before/during absence * Age, military experience, and general intelligence of the Soldier * Number and type of contact the Soldier had with the military absent * Complete or incomplete results of a court-martial decision if any (2) An absence immediately following authorized leave is classified as AWOL. Should the absence subsequently be reclassified, the soldiers leave is corrected to reflect the reclassified absence, except if the absence is caused by the following: * Mental incapacity * Detention by civilian authorities * Early departure of a mobile unit due to operational commitments 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). b. A review of the available evidence provides the applicant enlisted as an E-2 and served in Korea for a yearlong tour, serving without indiscipline for 1 year, 9 months, and 17 days; They received a Suspend Favorable Personnel Action (FLAG) flagged on their record for adverse action for wrongful appropriation of $434 from the safe of the DFAC and for having been AWOL. They returned to military control and was placed in pretrial confinement from 5 February – 21 March 2007. c. As a result of the charges and after consulting with counsel, the applicant requested to be voluntarily discharged In Lieu of Trial by Court-martial and elected not to submit a statement on their behalf. d. Defense counsel submitted a statement in support of the applicant and recommended the command endorse the request. The applicant has shown their potential for rehabilitation by returning to military control, paying the DFAC back in full, and owning up to their mistake in an email to the battalion commander expressing remorse. Counsel states being placed in pretrial confinement and being administratively discharged is adequate punishment in this case. Counsel received an endorsement from the chain of command [company commander, intermediate commander, and the battalion commander] recommending approval of the discharge request with a general (under honorable conditions) characterization of service. e. Army Regulation 635-200 states Chapter 10 is a voluntary discharge request in-lieu of trial by court-martial. A discharge under other than honorable conditions normally is appropriate for a soldier who is discharge in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. For Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be improper. f. 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? 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 diagnosis: In-service Adjustment Disorder (2) Did the condition exist or experience occur during military service? Yes. In-service Adjustment Disorder (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant is not service connected for a condition and the in-service diagnosis was in reaction to the legal stressors rather than existing prior to the misconduct. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB determined that the Adjustment Disorder did not outweigh the basis of separation. b. Response to Contentions: The applicant did not make any contentions or provide any evidence to support that the discharge was improper or inequitable. The Board reviewed all available evidence and determined that no relief was warranted at this time. 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 carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official that the applicant's Adjustment Disorder does not mitigate the applicant's misconduct (failing to report, AWOL, stealing and making a false official statement). Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation and the character of service the applicant received upon separation were proper and equitable. (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 AR20220003731 1