1. Applicant's Name: a. Application Date: 22 August 2017 b. Date Received: 25 August 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests that his bad-conduct discharge be upgrade to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, his discharge was inequitable because of undue consideration that was given to the conditions of his Special-Court Martial. He contends he was given the opportunity to remain in the military being reduced in rank if he would give names of superior's who furnished the steroids. The pressure to retain consistent improvements on PT tests coupled with the stress of an active war zone in Al Fallujah he chose to use steroids and he takes responsibility. The use of steroids was wide spread in his unit and included commanding officers. He could not in good conscience shift blame from himself to the men who fought beside him. He could not remain in the service shouldering the blame himself for a substance that was directed toward him, used responsibly and safely. He contends his discharge was improper and inequitable for several other reasons; his council advised him that after six months his discharge would automatically change to general for which he could then apply for an upgrade; within the context of his trial no consideration was given to his Post-Traumatic Stress Disorder (PTSD) that was effecting his behavior; he was given assurance by his council that six months after his discharge, his discharge would automatically be upgraded; and during the investigation, question were asked of him that violated the "Don't Ask Don't Tell" policy and his refusal to answer some and not others may have cause a bias towards him. Per the Board's Medical Officer, based on the information available for review at the time, the applicant was guilty of numerous drug-related specifications at Special Court-Martial that sentenced him to a Bad Conduct Discharge. Specifications included possession of drug paraphernalia (hash and hypodermic syringe), importation of 30 vials of steroids, as well as importation via military air craft of hashish. He also was guilty of using drugs. The applicant has no diagnoses or records in AHLTA. JLV showed no VA SC percentages or diagnoses on his VA Problem List. He had 3 VA outpatient encounters in the JLV, with all showing a diagnosis of "Problems related to other legal circumstances." The applicant was seen in custody to review possible benefits post-incarceration, especially appeared likely the applicant would be homeless. I found no mitigating diagnoses. Further, given the nature of the applicant offenses, even if, as he claims, he had PTSD (post-service diagnosis by civilian), his misconduct is not of a kind that would be mitigated by that disorder. In a records review conducted at Arlington, VA on 4 May 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Court-Martial, Other / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 28 December 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 28, dated 17 June 2005, on 8 March 2005, the applicant was found guilty of the following: Charge I: Article 92. Plea: Guilty, as amended. Finding: Guilty. Specification: Violating a lawful general order, to wit paragraph 4(q), 82d Airborne Division Regulation 190-2, dated 5 December 2002, by wrongfully possessing drug paraphernalia, to wit; a pipe used for inhaling hashish and a hypodermic syringe used for injecting steroids on or about 13 December 2004. (After arraignment, but prior to entry of pleas, Charge I was amended by changing the work "order" to "regulation" upon motion by the trial counsel) Charge II; Article 112a. Plea: Guilty, as amended. Finding: Guilty. Specification I: Wrongfully imported approximately 30 vials of steroids, a Schedule II controlled substance, into the customs territory of the United States on board an aircraft used by the armed forces, to wit: a return flight from Operation Iraqi Freedom on about 29 March 2004. Specification 2: Wrongfully used steroids, a Schedule II controlled substance, between on or about 1 March 20045 and 30 April 2004. Specification 3: Wrongfully imported some amount of hashish marijuana into the customs territory of the United States on board an aircraft used by the armed forces, to wit: a return flight from Operation Enduring Freedom in Afghanistan on or about 1 November 2004. Specification 4: Wrongfully used cocaine and marijuana, on separate occasions, between on or about 1 November 2004 and 7 December 2004 (2) Adjudged Sentence: The applicant was sentenced to a Bad Conduct discharge, reduction to E-1, and confinement for 5 months (3) Date/Sentence Approved: On 17 June 2005, only as much of the sentence as provides for a Bad-Conduct discharge, confinement for 140 days, and reduction to the grade of E-1 was approved, and except for the part of the sentence extending to a Bad-Conduct discharge was ordered to be executed (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocated General of the Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence (5) Date Sentence of BCD Ordered Executed: 11 July 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 January 2003 / 4 years b. Age at Enlistment / Education / GT Score: 27 / 16 years / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 74D1P, Chemical Operation Specialist / 3 years, 8 months, 26 days d. Prior Service / Characterizations: USARCG, 2 December 2002 to 1 January 2003 / NA e. Overseas Service / Combat Service: SWA / Iraq (Dates NIF) f. Awards and Decorations: NDSM, GWOTSM g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Special Court Martial Order as described in previous paragraph 3c i. Lost Time / Mode of Return: Confinement/Military Authorities 120 days (8 March 2005 to 8 July 2005). The confinement was the result of his Special-Court Martial sentence. The DD Form 214 under review also indicates the applicant had 497 days of excess leave (19 August 2005 to 28 December 2006) j. Diagnosed PTSD / TBI / Behavioral Health: NIF; however, independent documents submitted by the applicant, dated 8 August 2009, show the applicant was diagnosed with an Axis I for Post-Traumatic Stress Disorder, Major Depressive Disorder, Substance Dependence and Axis IV for Adjustment to life cycle transition, relationship discord, incarceration. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Psychological Evaluation, dated 8 August 2009; and an Evaluation of Competency for Adjudication, dated 18 July 2008. 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. National Defense Authorization Act 2017 provided 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) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided 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; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests that his bad-conduct discharge be upgrade to honorable or general (under honorable conditions). The applicant's record of service, the issues and documents 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 seeks relief contending, his discharge was inequitable because of undue consideration that was given to the conditions of his Special-Court Martial He contends he was given the opportunity to remain in the military being reduced in rank if he would give names of superior's who furnished the steroids. The pressure to retain consistent improvements on PT tests coupled with the stress of an active war zone in Al Fallujah he chose to use steroids and to take responsibility. The use of steroids was wide spread in his unit and included commanding officers. He could not in good conscience shift blame from himself to the men who fought beside him. He could not remain in the service shouldering the blame himself for a substance that as was directed toward him, used responsibly and safely. The applicant contentions were noted; however, the 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. He further contends his discharge was improper and inequitable for several other reasons; his council advised him that after six months his discharge would automatically change to general for which he could then apply for an upgrade; within the context of his trial no consideration was given to his Post-Traumatic Stress Disorder (PTSD) that was effecting his behavior; he was given assurance by his council that six months after his discharge, his discharge would automatically be upgraded. The applicant's issue about being told his discharge would be automatically upgrade was also noted. However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable. Further, the independent post-service medical documents submitted by the applicant reference his diagnosis for PTSD were noted. However, the service record contains no evidence of Post- Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant contends that during the investigation, question were asked of him that violated the "Don't Ask Don't Tell" policy and his refusal to answer some and not others may have cause a bias towards him. The rationale the applicant provided as the basis for what he believes was a violation of the "Don't Ask Don't Tell" policy is not supportable by the evidence contained in the record and can only be viewed as speculative in nature. 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 4 May 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code 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 AR20170014497 1