1. Applicant's Name: a. Application Date: 28 December 2015 b. Date Received: 16 March 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to honorable and a change to his narrative reason for discharge to secretarial authority. The applicant seeks relief contending, in effect, that his misconduct was the direct result of a diagnosis of PTSD. He contends he was diagnosed and court-martialed rather than medically boarded out. He was threatened with a heavy sentence of 10 years if he did not accept a plea agreement. His JAG appointed defense counsel did not represent him to the best of her ability, rather she lied, mislead, and deceived him as much as she could in order to get him in agreement with the plea, in turn furthering her career. He contends the drugs he was caught using were for him to cope with his PTSD, and his counsel told him to admit to trying to sell them; however he says he was not selling drugs. He failed a urinalysis for marijuana after his civilian doctor was threatened he would lose his license if he continued to treat him. He contends he returned home from Iraq after combat, where he had been ordered to kill civilian and witnessing the cover-up of hundreds of murders. He lost all respect for the Army and his chain of command. He no longer wanted any part of their system and he made it very clear he would not be at his best ability. His chain of command began hazing and mistreating him as a human less alone an enlisted man. His underage drinking charge can be explained by his drinking as a coping mechanism. He was driving a car full of drunk battle buddies back to the base when he registered a .04 on a field ABT and was arrested, he was never given a true blood alcohol test, and he was just told he was underage drinking. He believes he was lied to from the first day he walked in a recruiter's office. Per the Board's Medical Officer, based on the information available for review at the time, the applicant had no significant behavioral health history in AHLTA. His sole diagnosis was Nicotine Dependence. He has no VA service-connected disability rating and no VA outpatient visits. His mother has submitted a letter stating he is "sick." She specifically complained that mental health providers had called her son "a malingerer." Records in file showed mention of Acute Stress Disorder on 07 August 2003. A treatment plan of an Army SP4 showed a diagnosis of PTSD; however, no basis for the diagnosis was provided. The plan was countersigned by an LPC. A note on 02 September 2003 showed a diagnosis of Depression. Another note by an Army SP4 noted "symptoms of PTSD" as being a source of conflict with command. There was also a request for a MSE from his command that was dated 23 September 2003. The applicant, per psychiatrist, declined this evaluation on 23 September 2003, but agreed to have it done on 29 September 2003 at 1500, but it appears the exam did not occur. He did not raise any mental health conditions in extenuation when making his guilty court-martial pleas. Diagnoses of PTSD begin to appear in his records in 2005. He was also judged to have personality problems at that time by one of the diagnosing doctors. His cited traumata include 30 consecutive days of combat, killing a civilian, witnessing atrocities, and a tank roll over, in which he has claimed he suffered a TBI that may have contributed to his misconduct. Based on a review of the court-martial transcript, I found no basis for mitigating his misconduct based on PTSD, even if he had PTSD at the time of the misconduct. It is unknown if he did, though liberal guidance would favor preceding as if he had PTSD. Evidence in the record shows the applicant had a prior records review on 20 April 2012. In a personal appearance conducted at Arlington, VA on 16 October 2017, and by a 5-0 vote, after carefully examining the applicant's record of service during the period of enlistment under review and hearing all testimony, the Board determined that clemency is warranted based on the applicant's length and quality of service, to include combat service, board judgement, a period of homelessness and the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of EPTS behavioral health issues exacerbated by combat/military service and PTSD). Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to general, under honorable conditions. A change in the reason for discharge is not authorized under Federal statute. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Court-Martial, Other / AR 635-200, Chapter 3 Section IV / JJD / RE-4 / Bad Conduct b. Date of Discharge: 31 March 2006 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 3 , dated 6 February 2004, on 12 December 2003, the applicant was found guilty of the following charges: On divers occasions, without authority, failed to go at the time prescribed to his appointed place of duty, to wit: unit 0630 accountability and PT formations at the Battalion motor pool x5, on 16, 17, 21, 22, and 23 October 2003; Having received a lawful command from LTC S, his superior commissioned officer, then known by the said PVT C, to be his superior commissioned officer, to serve extra duty for 45 days, or words to that effect, did, on various and divers occasions from 16 September 2003 and 31 October 2003, willfully disobeyed the same, to wit: 19, 20, 21, 23, and 24 September 2003, and on divers occasions after 6 October 2003; Having received a lawful command from LTC S, his superior commissioned officer, then known by the said PVT C to be his superior commissioned officer, not to leave the limits of Kelley Hill, or words to that effect, on 24 October 2003, willfully disobeyed the same; With intent to deceive, made to SGT C, an official statement on 21 October 2003, to wit: that he had quarters from getting his wisdom teeth pulled, which statement was totally false, and was then known by him to be so false; At an unknown location, between 15 September 2003 and 29 September 2003, wrongfully used marijuana; At or near Wal-Mart in Enterprise, AL, on 5 August 2003, wrongfully possessed 90 pills of 2mg Xanax (Alprazolam), a Schedule IV Controlled Substance; and At a place under exclusive federal jurisdiction, on 24 October 2003, while under the legal drinking age of 21, wrongfully drove a motor vehicle while his blood alcohol concentration was greater than .02 grams within three hours of driving. This was in violation of O.C.G.S. 40-6- 39(k)(i) assimilated into Federal law by 18 U.S. Code. (2) Adjudged Sentence: forfeiture of $767.00 pay per month for six months, confinement for six months, and discharged from the service with a bad-conduct discharge. (3) Date/Sentence Approved: 6 February 2004 / only so much of the sentence as provides for confinement for four months, forfeiture of $767.00 pay per month for six months, and discharge from the service with a bad-conduct discharge 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. On 9 February 2006, The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 31 March 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 October 2001 / 3 years b. Age at Enlistment / Education / GT Score: 18 / GED / 120 c. Highest Grade Achieved / MOS / Total Service: E-2 / 19K10, Armor Crewman / 4 years, 2 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (specific dates are not reflected on applicant's DD214, but references to an Iraq deployment are made within the applicant's AHLTA file and military records provided by the applicant.) f. Awards and Decorations: ARCOM-2, PUC, NDSM, AFEM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Military background information with the court-martial documents show the applicant received three Article's 15; Company Grade on 14 February 2003 for multiple FTRs and an AWOL; Field Grade April 2003 for wrongful use of marijuana and distributing Percocet to undercover CID agents; and another Field Grade on 15 September 2003, for multiple FTR's. i. Lost Time / Mode of Return: 98 days (military confinement 7 November 2003 to 12 February 2004) / as a result of the court-martial order. j. Diagnosed PTSD / TBI / Behavioral Health: Documents taken from the applicant's prior records review (AR20120003355) shows on a chronological record of medical care document, dated 16 February 2005, the applicant reported difficulties for the past 18 months with sleeping and coping with his mood after returning from Iraq. He reported feelings of anxiety while recalling past deployment memories. Also he had anxiety due to making enemies after returning back to Enterprise AL. It was noted that at the time of his medical care the applicant was currently appealing a court-martial ruling and was on excess leave until appeal was processed. Documents submitted by the applicant make reference to the applicant having received medical assistance and treatment for symptoms of PTSD and for depression. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; letter from his mother; eight enclosures, i.e., DD Form 214, deployment orders/roster (proof he was AD and deployed to combat zone), summary of court-martial proceedings (not the various signatures); appeal history, medical records pertaining to mental health and physical injuries (untreated), symptoms of traumatic brain injury and post-traumatic stress disorder, miscellaneous statements, comments made by Colonel J.S. and Captain T. B. (Both retired), court martial and appeals, and VA application attempts and denials. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section IV establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed. Because relevant and material facts stated in a court-martial specification are presumed by the ADRB to be established facts, issues relating to the applicant's innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the ADRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. Secretary of Defense Memorandum for Secretaries of the Military Departments (Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated September 3, 2014), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members' discharges. "Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre- existing conditions which are determined not to have been incurred or aggravated while in military service." "Conditions documented in the 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 PTSD or PTSD related conditions 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 under other than honorable conditions characterization of service. Correction boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD or PTSD-related conditions as a causative factor 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. Correction Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct." 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his bad-conduct discharge to honorable and a change of his narrative reason for discharge to secretarial authority. The applicant's record of service, the documents and the issues submitted with his application were carefully reviewed. The service record indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. 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. The applicant contends that the narrative reason for his discharge should be changed to Secretarial Authority. Separation under this paragraph is the prerogative of the Secretary of the Army, Secretary plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provisions of this regulation (AR 635-200, Chapter 5-3) applies, and early separation is clearly in the best interest of the Army. Further, the appropriate SPD code and narrative reason for discharge to assign enlisted Soldiers who are discharged for court-martial, other is "JJD" and the RE code is 4. The regulation further stipulates that no deviation is authorized. A change in the reason for discharge is not authorized under Federal statute. The applicant seeks relief contending, that his misconduct was the direct result of a diagnosis of PTSD. The medical documents in the applicant's records and the ones submitted with the application were noted. However, the documents taken from the applicant's prior records review (AR20120003355) shows on a chronological record of medical care document, dated 16 February 2005, the applicant reported difficulties for the past 18 months with sleeping and coping with his mood after returning from Iraq. He reported feelings of anxiety while recalling past deployment memories. Also he had anxiety due to making enemies after returning back to Enterprise AL. It was noted that at the time of his medical care the applicant was currently appealing a court-martial ruling and was on excess leave until the appeal was processed. Further, the documents submitted by the applicant also makes reference to the applicant having received medical assistance and treatment for his symptoms of PTSD and for depression. After a careful review of the entire record this medical condition did not overcome the reason for discharge and characterization of service granted. It appears the applicant's chain of command determined that although he was suffering from PTSD, he knew the difference between what was right and wrong as indicated by the documents submitted. Further, there are many Soldiers with the same condition that completed their service successfully. The applicant further contends that his chain of command began hazing and mistreating him as a human less much less an enlisted man. The evidence of record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. His underage drinking charge can be explained by his drinking as a coping mechanism. He was driving a car full of drunk battle buddies back to the base when he registered a .04 on a field ABT and was arrested, he was never given a true blood alcohol test, and he was just told that he was under the legal age to drink. He believes he was lied to from the first day he walked in a recruiter's office. There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discriminated. In fact, the applicant's numerous incidents of misconduct justify a pattern of misconduct. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 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. 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): Liberty Regional Medical Center - 19 pages Letter from Joseph Elliott - 2 pages Letter from COL Bowen - 2 pages Letters from Iraq written by the applicant - 10 pages Photographs of the applicant/family - 3 pages b. The applicant presented the following additional contention(s): Change the narrative reason Change to the RE code c. Witness(es) / Observer(s): Mr. and Mrs. Coleman 10. BOARD DETERMINATION: In a personal appearance conducted at Arlington, VA on 16 October 2017, and by a 5-0 vote, after carefully examining the applicant's record of service during the period of enlistment under review and hearing all testimony, the Board determined that clemency is warranted based on the applicant's length and quality of service, to include combat service, board judgement, a period of homelessness and the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of EPTS behavioral health issues exacerbated by combat/military service and PTSD). Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to general, under honorable conditions. A change in the reason for discharge is not authorized under Federal statute. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD/RE Code to: No Change f. Restore (Restoration of) Grade to: No Change AUTHENTICATING OFFICIAL: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160005897 1