1. Applicant's Name: a. Application Date: 13 December 2022 b. Date Received: 20 December 2022 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 applicant understands the crime the applicant inflicted upon the Army and to leadership. The applicant further seeks forgiveness from this organization. The applicant often reflects on the applicant's actions toward the events that led to the applicant's downfall and learned from them. Through the applicant's cowardice and disgraceful thievery action in the past, the applicant states to have changed to better self and to give back to the applicant's community. The applicant is outstandingly grateful that the applicant's leadership and the Army gave the applicant a second chance to live and to be better without incarceration. b. Board Type and Decision: In a telephonic personal appearance hearing 6 November 2023, and by a 5-0 vote, the Board voted to grant relief in the form of an upgrade of the characterization of service to General, Under Honorable Conditions. There is no change to the SPD and RE Codes. Please see Section 10 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, Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 30 December 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 November 2019 (2) Basis for Separation: The applicant was informed of the following reasons: (a) On or about 26 April 2019, with intent to deceive, the applicant made to SA J__ M. Z__-B__, official statements, to wit: "[Specialist B__ A. C__] stole [applicant's] driver's license" or words to that effect and "[Applicant] believe [the said Specialist C__] took all the FLIPL pro- masks" or words to that effect, which statements were false in that the said Specialist C__ did not steal the applicant's driver's license and the applicant knew that Specialist C__ did not take "FLIPL pro-masks," and was then known by the applicant to be so false. (b) On or about 30 April 2018, without proper authority, the applicant sold twenty-five (25) M50 Pro-Masks of a value of more than $500, the military property of the United States Army. (c) On or about 30 April 2018, the applicant stole twenty-five (25) M50 Pro-Masks of a value of more than $500, the military property of the United States Army. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 19 November 2019, the applicant waived legal counsel. (5) Administrative Separation Board: On 19 November 2019, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 19 December 2019 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 August 2016 / 3 years and 25 weeks b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-4 / 74D10, Chemical Operations Specialist / 3 years, 4 months, and 8 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (6 May 2018 - 3 July 2018) f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memorandum for Record, Findings and Recommendations, Commander's Inquiry Potential Property Loss, 25 March 2019, shows as a result of an investigating officer's investigation, it was found that the applicant did not follow proper procedure when issuing M50 chemical masks prior to deployment. There was no sub-hand receipt of the equipment to the individuals to whom the gear was issued. Applicant's sworn statement, 10 April 2019, states the applicant made sure the Soldiers being issued out an M50/M51 protective mask for deployment, filled out and signed a DA Form 2062 (Hand Receipt / Annex Number). A check written out to the applicant on 30 April 2018 in the amount of $250 with the memo reflecting gas mask. Memorandum, Opine for Case, (Applicant), 30 April 2019, shows Trial Counsel's legal opinion: For the offense of Larceny, in violation of Article 121, Uniform Code of Military Justice (UCMJ), it was determined that the facts support a finding of probable cause to believe that the offense occurred, and that the applicant committed it. This is based largely on the applicant's admission that the applicant took multiple pro masks from the unit and sold them at a surplus store called GI Jose's. The masks were recovered from GI Jose's and were identified by their serial numbers as the masks that were missing from the unit. Additionally, Trial Counsel found probable cause to believe that the applicant also committed the offense of Selling Military Property, in violation of Article 108, UCMJ. Developmental Counseling Forms, 18 June 2019, shows the applicant was counseled for initiation of an adverse action (AA) flag because of larceny. Report of Mental Status Evaluation, 29 September 2019, shows the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and TBI with negative results. The command was advised to consider the influence of these conditions. Memorandum, Commander's Report - Proposed Separation under AR-635-200, chapter 14-12c, commission of a serious offense, Applicant, 19 November 2019, shows the applicant had charges preferred against the applicant on 29 October 2019. The AMHRR is void of the charge sheet. The applicant's Enlisted Record Brief, 31 December 2019, shows the applicant was flagged for adverse action (AA), effective 12 June 2019 and for involuntary separation/field initiated (BA), effective 21 November 2019; was ineligible for reenlistment due to pending separation (9V). The Assignment Eligibility Availability (AEA) code shows AEA code "C" which is temporarily ineligible for reassignments due to medical, convalescence, confinement due to trial by court martial, enrollment in Track III ASAP, or local bar to reenlistment. FLAGS / AEA codes: AA, BA / C RE/Prohibition code: 9V i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; Volunteer Certificate; Leadership Certificate; Concordia University Degree Progress; Concordia University Unofficial Transcript; Volunteer Service. 6. POST SERVICE ACCOMPLISHMENTS: Volunteered at Gillette children's hospital in St. Paul as a physical therapy support volunteer. Anticipates to graduate from Concordia University of St. Paul spring of 2024 with a Bachelor of Science in Health and Science and major in Prosthetics and Orthotics to continue helping the community. Has held a supervisor position in the applicant's current job at Cross Town Cleaning since the discharge. 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) 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) 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. (6) 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. (7) 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. (8) 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, 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: (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. The applicant requests an upgrade to honorable. The applicant's AMHRR, the issues, and documents submitted with the application were carefully reviewed. The applicant's DD Form 214 shows the applicant served 3 years, 4 months, and 8 days during which the applicant served 5 months and 14 days in Afghanistan. The applicant stole and sold 25 M50 Pro-Masks. The applicant was discharged with a under other than honorable conditions characterization of service on 30 December 2019. The applicant contends, in effect, to have volunteered at Gillette children's hospital in St. Paul as a physical therapy support volunteer. Anticipates to graduate from Concordia University of St. Paul spring of 2024 with a Bachelor of Science in Health and Science majoring in Prosthetics and Orthotics to continue helping the community. Has held a supervisor position in the applicant's current job at Cross Town Cleaning since the discharge. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): No additional documents were submitted. b. The applicant presented the following additional contention(s): No additional contentions were presented. Applicant provided oral arguments in support of the contentions provided in his written submissions and in support of his documentary evidence. c. Counsel / Witness(es) / Observer(s): Applicant-only appearance 10. 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. Prior Decisions Cited: c. Response to Contention: The applicant contends, in effect, to have volunteered at Gillette children's hospital in St. Paul as a physical therapy support volunteer. Anticipates to graduate from Concordia University of St. Paul Spring of 2024 with a Bachelor of Science in Health and Science majoring in Prosthetics and Orthotics to continue helping the community. Has held a supervisor position in the applicant's current job at Cross Town Cleaning since the discharge. The Board determined that this contention was valid and voted to upgrade the characterization of service. d. The Board determined the discharge is inequitable based on the applicant's length, combat, post service accomplishments and testimony. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General Under Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. e. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service based on applicant's length, combat, post service accomplishments and testimony. The Board found the current discharge is inequitable. The applicant has exhausted his appeal options available with ADRB. However, the applicant may still apply to 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. (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. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20230003414 1