IN THE CASE OF: BOARD DATE: 26 October 2023 DOCKET NUMBER: AR20220012123 APPLICANT REQUESTS: an upgrade of his bad conduct discharge (BCD) to honorable and a more favorable separation code and reentry eligibility code. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States * Department of Veterans Affairs (VA), Statement in Support of Claim, dated 3 September 2022 * Memorandum, issued by the U.S. Army Garrison, Subject: Completion of Alcohol and Drug Abuse Prevention Training (ADAPT)/Prime for Life Course, dated 23 May 2012 * GSE Platoon Alert Roster (Chain of Command), dated 4 Feb 2013 * Memorandum, issued by the U.S. Army Medical Department Activity, Subject: Request for Separate Rations, dated 13 February 2013 * Commander’s Report of Disciplinary or Administrative Action * DA Forms 4856 (Developmental Counseling Form), dated 20 March 2013 and 29 March 2013 * Memorandum, issued by the U.S. Army Trial Defense Services, Region West, Subject: Request for Clemency, dated 4 March 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 22 May 2015 * Medical Documents FACTS: 1. The applicant did not file within the 3-year time-frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. His due process rights were violated when he was forced to wait 140 days after his conviction on 19 April 2012 to receive his copy of the certified Record of Trial (ROT) and the Staff Judge Advocate's (SJA) Recommendations, which was in excess of 120 days. Under United States v. Moreno, 63 M.J. 129 (CAAF 2009), the 20-day excess requires a presumption that he has suffered unreasonable delay in the post-trial processing of his case. According to the Court of Appeal for the Armed Forces, the convening authority was expected to ensure documentation of reasons for delays and exercise “institutional vigilance" in correcting/providing redress for untimely post-trial processing. b. As a result, he was subjected to death threats and sexual advances from other inmates while serving pre-trial confinement at Miramar Consolidated Brig. He did not disclose such threats to the Brig staff or his counsel for fear of retaliation from inmates as well as being tabbed a "snitch.” c. He suffered greatly while serving pre-trial confinement at Miramar Consolidated Brig as well as before confinement as an active duty service member at the National Training Center Fort Irwin California. During the investigation, leading up to his pre-trial confinement, he was subjected to public ridicule, shame, and constant harassment from fellow service members, as well as from noncommissioned officers (NCOs) when an untrue allegation of rape and sexual assault, on a civilian employee, circulated through social media, and was also publicized in the "Army Blotter". d. As a result, he attempted suicide, was sent to the Aurora Behavioral Health Care in San Diego, California, and was treated until his pre-trial confinement. e. To deal with all the stress, he self-medicated with alcohol. He sought treatment for mental health and was prescribed benzodiazepines for panic attacks and depression. He started mixing both alcohol and medications and then he became an alcoholic. He could not function without pills or alcohol. He was eventually counseled and ordered to complete the Army Substance Abuse Program (ASAP), while still in the military. f. Due to his charges, he was facing a life sentence for a false charge. He then fell into a deeper depression and was placed on suicide watch. During his time in pre- confinement, he was subjected to strip searches, numerous fights amongst other inmates, sexual threats and intimidation. g. He was offered a two-year deal by the prosecution that would grant him immunity should the judge impose a life sentence for sexual assault. In exchange, he would have to plead guilty to any and all other charges listed. The decision to accept guilt for crimes he did not commit was gut-wrenching but given the death threats he received while in pre-trail confinement, he was not going to take any chances, since he feared for his life. h. When he entered the plea of guilty, he had waived his constitutional right and rights provided under the Uniform Code of Military Justice (UCMJ) to have the government prove beyond a reasonable doubt that he violated Articles 121, 109, 90, 91, and 134. i. On the day of the hearing, the Judge dismissed all sexual assault and rape charges, however, instead of being returned back to active duty, he was held to his plea agreement and was convicted of violating Articles 121, 109, 90, 91, and 134. He was sentenced to six months in confinement, but only served two months for good behavior and the 86 days were credited from when he served in pre-trial confinement. He also received a BCD. j. His PTSD has impacted his work and personal relationships with his family. As a result, he has been homeless and living on the streets and couch surfing for the past seven years. He has sought help from outreach programs as well as local clinics, medications, and state and local programs. 3. The applicant provides the following documentation: a. Memorandum, issued by the U.S. Army Garrison, Subject: Completion of ADAPT/Prime for Life Course, dated 23 May 2012, which states, he attended and completed 18 hours of ADAPT/Prime For Life and successfully completed the required hours of awareness/education training. b. DA Forms 4856, dated 20 March 2013 and 29 March 2013, which reflects he was counseled on his excessive alcohol consumption while on medication and his high-risk behavior for two alcohol related incidents that lead to him being admitted to the emergency room, and his pending investigation for an incident which occurred between him and a civilian female. c. Memorandum, issued by the U.S. Army Trial Defense Services, Region West, Subject: Request for Clemency, dated 4 March 2014, reflects he was pending a court- martial for one specification of Article 121, one specification of Article 109, three specifications of Article 90, and one specification of Article 91. Pursuant to his plea agreement at trial, a military judge found him guilty of the above specifications and charges and sentenced him to be confined for a period of 6 months and to be discharged with a BCD, with a credit of 86 days in pre-trial confinement. The applicant’s defense counsel argued for clemency based on his rehabilitation, that he took full responsibility of his actions, the loss of his military career, and his pre-existing behavior health conditions for depression and anxiety. Additionally, his counsel states that his due process rights were violated when he was forced to wait 140 days after he was convicted on 19 April 2012 to receive his copy of the certified record of trial and the Staff Judge Advocates recommendation. The 140 day period is per se unreasonable as it is in excess of 120 days, pursuant to United States v. Moreno, in which the 20 day excess requires a presumption that the applicant has suffered unreasonable delay in the post- trial processing of his case. d. Medical Documents, which will be reviewed and discussed by the Behavior Health Staff at the Army Review Board Agency. 4. A review of the applicant’s service records shows: a. The complete facts and circumstances leading to a general court-martial conviction are not contained in the applicant's available service records. b. On 7 June 2011 he enlisted in the Regular Army. c. Personnel Action document, dated 18 September 2013, shows his status changed from present for duty to confined by military authorities. d. Confinement Order, dated 18 September 2013 shows he was placed in confinement for a period six months as a result of a court-martial for Article 121, Article 109, Article 90, Article 91, and Article 134, and was to be discharged with a BCD. e. Personnel Action document, dated 18 November 2013 shows his status changed from confined by military authorities to present for duty due to the completed sentence. f. General Court-Martial Order (GCMO) Number 99, issued by Headquarters (HQ), U.S. Army Fires Center of Excellence and Fort Sill, dated 3 April 2015, shows his sentence was approved of six months and a BCD, which was adjudged on 18 September 2013 and was affirmed. He was credited with 86 days of confinement against the sentence to confinement. a. DD Form 214, dated 22 May 2015 shows he was discharged as a result of a court martial conviction with a BCD. His rank/grade was private/E-1. He completed 3 years, 6 months, and 22 days of net active service this period with time loss from 24 June 2013 to 17 November 2013. It further shows in: * Block 24 (Character of Service) – Bad Conduct * Block 25 (Separation Authority) – Army Regulation 635-200, Chapter 3 * Block 26 (Separation Code) – JJD * Block 27 (Reentry Code) – 4 * Block 28 (Narrative Reason for Separation) – Court-Martial, Other 5. A Criminal Investigation Division (CID) Report, dated 21 February 2023, includes the following documents: a. Commander’s Report for Disciplinary or Administrative Action, shows he was charged with sexual assault on 6 February 2013, received a general court-martial, pled not guilty and the trial findings were “DCR”. He was given six months confinement with a BCD and a reduction to pay grade E-1. b. CID Report, dated 21 February 2023, states, after the investigation, there was probable cause to believe the applicant committed the offense of sexual assault when he removed the victim’s clothes (a civilian) and forcibly had sex with her despite her repeated cries to stop. c. An updated Commander’s Report for Disciplinary or Administrative Action, shows he was charged with Simple Assault (Article 128), Unlawful/forced entry (Article 134), Wrongful Damaging of Private Property (Article 109), and Larceny of Private Property $100 and over (Article 121). He pled guilty and was found guilty of Article 109 and Article 121 and pled not guilty to Article 128 and Article 134, and these two charges were dismissed. He was given six months confinement with a BCD and a reduction to pay grade E-1. d. A military police report, which states, a 911 call was placed on post for simple assault against the applicant on 4 June 2013. The victim’s information has been redacted. It was noted that there was private property damage, which was stolen. It states, “At 2229 hours, on 4 June 2013, [victim] reported to this station an unlawful entry. Investigation revealed that at the above time and date [applicant] unlawfully gained entry into [victim’s] residence …and assaulted [victim] when he grabbed her arms. [Applicant] violated a unit no contact order and is also suspected of larceny as well as damage to private property. [Applicant] fled the scene on foot and is currently at large [Victim] did not sustain any injuries…at 0700 hours on 4 June 2013, first sergeant (1SG) reported to this station [applicant’s] whereabouts. 1SG stated [applicant’s] was admitted to the [emergency room] and is pending transport to an impatient facility. [He] is currently on a suicide watch status”. 6. The CID Report was provided to the applicant on 21 February 2023 with the opportunity to provide a response. 7. On 21 February 2023, the applicant responded via email to the CID report, stating: a. “My comment on the allegations of sexual assault are: the charges of sexual assault were extremely false and was dismissed in court by the judge. On the night of the incident, I approached by a cadre member who was on 24-hour duty in my barracks on the first floor, where my room was located several feet away. The responsibility of those on duty is to maintain the safety for service members by signing any personnel who come in and out of the barracks at all times. b. At the time I was dating a civilian I met online, who like me, also worked on base. Our relationship was brief, when it came to my attention that the said victim was engaging in inappropriate relation with other married service members on base. The night she came to my room located on the first floor, I mentioned and asked about the rumors. Immediately she began to curse, yell and scream and threw my cellular phone at the wall as well as anything else she could find. c. After the events in my room occurred, I brought it to the attention of the cadre member on duty as I thought I was doing the right thing and did not want to be fiscally responsible for any damages done to my room. I was given the option to make a written report of the incident or call the military police (MP) to make an official written statement. The cadre member on duty advised me as a sergeant to call the MP’s. Days later, when the MP contacted the female civilian about the incident of damages that occurred in my room, she told them she was sexually assaulted. d. After the events I was told by my command that I should not have gone to the MP’s and should have kept it between myself and the unit, but now there was nothing they could do to help me. I was outcast by superiors, my fellow service members and the Fort Irwin community as the accusation was made public by the Army Blotter and was posted between other service members on social media. I felt outraged, embarrassed, angry, and suicidal. I felt I had the worst decision of my career and involved the PM’s. e. I am an advocate as well as a victim of physical, sexual assault and past sexual abuse stemming from my childhood that occurred in my family, because of those allegations of rape during my pre-trial confinement, I suffered greatly and was traumatized. I was subjected to sexual threats, sexual advances as well as threats of death by other inmates and was treated harshly by the staff.” 8. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his bad conduct discharge (BCD) to honorable, a change to separation code and to the reentry eligibility code to more favorable designations. The applicant asserts that PTSD and sexual harassment/MST are related to his request for upgrade. * The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * The complete facts and circumstances leading to a general court-martial conviction are not contained in the applicant's available service records. * He enlisted in the Regular Army on 7 June 2011. * Personnel Action document, dated 18 September 2013, shows his status changed from present for duty to confined by military authorities. Confinement Order, dated 18 September 2013 shows he was placed in confinement for a period six months as a result of a court-martial for Article 121, Article 109, Article 90, Article 91, and Article 134, and was to be discharged with a BCD. * Personnel Action document dated 18 November 2013 shows is status changed from confined by military authorities to present for duty due to the completed sentence. * The applicant was discharged on 22 May 2015, with a BCD. * CID report dated 21 February 2023 shows on 6 February 2013 he was charged with sexual assault, which was later updated to Simple Assault (Article 128), Unlawful/forced entry (Article 134), Wrongful Damaging of Private Property (Article 109), and Larceny of Private Property $100 and over (Article 121). He pled guilty and was found guilty of Article 109 and Article 121 and pled not guilty to Article 128 and Article 134, and these two charges were dismissed. He was given six months confinement with a BCD and a reduction to pay grade E-1. (see report for full details). It appears his time was reduce to 2 months. * See his statement in response to the CID report for full details of his account. b. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, his ABCMR Record of Proceedings (ROP), applicant letter, DD Form 214, his service and separation records, as well as Department of VA statement in Support of Claim, an alert roster, and several memoranda relating to the legal concerns during his service. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. c. The applicant makes numerous assertions regarding legal aspects of his case (due process rights were violated, delays, charges were dropped but he was still held to his plea agreement, etc.). This advisor, however, will focus only on the mental health aspect of his assertion and history. The applicant asserts that he experienced mental health concerns after he was being investigated, suffered harassment, public ridicule, shame, threats, sexual advances, sexual threats, before and during pre-trial confinement, and that he now suffers from PTSD. He asserts he was charged with an “untrue allegation” of rape and sexual assault on a civilian employee. He also asserts that the trauma of his treatment in pre-trial confinement led to him making a deal versus face a “life sentence for false charges.” The applicant is requesting an upgrade of his discharge. d. Per the applicant’s electronic health records (EHR), he did have engagement with mental health during his time in service. He was seen by primary care in 2011 for insomnia. He initiated mental health care (primarily medication management/psychiatry) care on 29 February 2012 and was consistently seen (monthly or more) in the year prior to his reported misconduct. He was then seen more consistently after the charges and continued with some care once confined. He first presented for panic attacks, with sleep issues, which started once deployed to Korea (28 December 2011). He noted these occurrences started after AIT and he’d previously taken Buspar. His presentation was initially conceptualized as adjusting to military life, as he suspected his symptoms were coming from being away from home and the distance causing issues with his girlfriend. He continued to address anxiety, panic, and sleep issues throughout his care, as well as depression, with the stressors increasing once he was charged. On 29 May 2013 he requested a med board at the advice of his counsel. The assessing provided stated he was not yet at the medical readiness decision point, and noted he’d not yet received maximal therapy to determine long term prognosis. His record also reflects he was seen once at the ER for intoxication (mixed poorly with medications; 19 March 2013) and was inpatient (5 June 2013 to 24 June 2013). The applicant asserted he attempted suicide and was sent to Aurora Behavioral Health Care in San Diego, CA and was treated there prior to pre-trial confinement; this was likely the admission reflected in his EHR. During his time in service, he was diagnosed with panic disorder without agoraphobia (26 September 2012), adjustment disorder (12 October 2012), adjustment disorder with anxiety (19 December 2012), depression (06 and 11 June 2013), adjustment disorder with anxiety and depressed mood (20 September 2013), insomnia (7 October 2013), and anxiety (12 December 2013). e. In addition to his ERH, the applicant provided self-authored accounts and statements in his supporting records. He reported he self-medicated with alcohol and sought treatment and was prescribed medication for panic attacks and depression. He noted he began mixing the meds and alcohol and became an addict. He noted he was eventually counseled and ordered to complete the Army Substance Abuse Program (ASAP). Memoranda included show he completed 18 hours of ADAPT/Prime for Life 23 May 2012. His records also show that he was counseled for excessive alcohol while on medication, two alcohol related incidents which led to him being admitted to the ER, and the pending investigation of an incident that occurred between him and a civilian female. f. Per the applicant’s VA EHR, he is not service connected. However, given the characterization of his discharge, he would not typically be eligible for most VA benefits. He has had a few encounters with the VA, to include mental health engagement, starting in 2018. During this initial case management consult, the applicant denied MST. He appeared to screen negative for PTSD but was diagnosed with anxiety disorder – unspecified. No follow up treatment appears to have occurred. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available, with anxiety (anxiety attacks, acute anxiety and anxiety related to health) being a diagnosis given starting in 2014, with it noted as recently as June 2023. He is also listed as having a history of depression. The applicant supplied a form – Clinical Management for Behavioral Health Services – MH Diagnosis, that lists major depressive disorder, recurrent episodes with psychotic features (MDD), agoraphobia, generalized anxiety disorder (GAD) and PTSD as the applicant’s diagnoses with a diagnosis date of 12 January 2023. A note/plan of care suspects presentation of paranoia may be secondary to PTSD due to history of prison and sexual abuse. No further context was provided. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support the applicant had a potentially mitigating condition during his time in service. There is no evidence the applicant had a potentially mitigating experience prior to his misconduct, though there is self-report evidence after the misconduct occurred. Regardless, there is no nexus between his charges and anxiety, panic, insomnia, or adjustment disorders. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes, applicant asserts PTSD and sexual harassment/sexual threats. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts potentially mitigating condition and experiences during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts PTSD secondary to sexual harassment/threats, and mistreatment after he was charged, and while he was confined. There are several points to consider. First, there is insufficient evidence the applicant was diagnosed with PTSD while in the service and/or prior to his misconduct. The applicant supplied a civilian document from 2023 listing PTSD, as well MDD, agoraphobia and GAD but the records did not include the start of symptoms or suspected etiology. Even when considering his assertion of PTSD, it would have been secondary to what he experienced after his misconduct and therefore would not be mitigating to his reason for discharge. Second, there is insufficient evidence, outside of self-report, that he had a potentially mitigating experience (sexual assault, harassment). However, per Liberal Consideration guidance, his contention is sufficient for consideration. That said, there is no nexus between experiencing an MST and committing property damage or larceny. Third, he was diagnosed with potentially mitigating conditions (anxiety, panic disorder without agoraphobia; adjustment disorders are not typically mitigating). These conditions, however, would not mitigate the charges he was found guilty of (Wrongful Damaging of Private Property [Article 109], and Larceny of Private Property $100 and over [Article 121]. Damaging property and larceny are not part of the natural history or sequalae of anxiety, panic disorder nor the asserted PTSD. Hence, mitigation is not supported. BOARD DISCUSSION: 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, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA BH Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. Based on a preponderance of the evidence, the Board determined the character of service the applicant received upon separation, the reason for his separation, and the codes associated with the reason for his separation were not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. By law, Title 10, U.S. Code, section 1552, court-martial convictions stand as adjudged or modified by appeal through the judicial process. This Board is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then 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 ABCMR does not have authority to set aside a conviction by a court-martial. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, in effect at the time, set policies, standards and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. An honorable discharge is a separation with honor. The 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. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. An under other than honorable conditions characterization was authorized when the reason for separation and was warranted by the circumstances of the case. d. Chapter 3-11 of Section III, A soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then 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. 6. Army Regulation 635-5-1 (Personnel Separations – Separation Program Designators), in effect at the time, listed the specific authorities, regulatory, statutory, or other directive, and reasons for separation from active duty, active duty for training, or full time training duty. The separation program designator "JJD" corresponded to "Court- Martial, Other," and the authority, Army Regulation 635-200, Chapter 3. 7. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces reentry eligibility (RE) codes. * RE-1 applies to persons completing an initial term of active service who are considered qualified to reenter the U.S. Army if all other criteria are met * RE-2A, 3A, 3B, 3C, 3D, 3E, 3S, and 3V apply to persons separated prior to the effective date of this regulation but did not meet reentry criteria at the time of separation * RE-3 applies persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable * RE-4 applies to persons separated from their last period of service with a nonwaivable disqualification 8. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 9. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 10. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 11. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220012123 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1