IN THE CASE OF: BOARD DATE: 8 September 2014 CASE NUMBER: AR20140007003 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony and considering the Discussion and Recommendation which follows, the Board determined that clemency is warranted based on the applicant's quality of service, his combat service, the strong indication of PTSD and TBI, and his testimony. Accordingly, the Board voted to grant clemency by upgrading the applicant’s characterization of service to general, under honorable conditions. A change in the reason for discharge is not authorized under the Federal statute. Presiding Officer I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case. THE APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests through legal counsel that his bad conduct discharge be upgraded to honorable or general, under honorable conditions. 2. The applicant states, in effect, through legal counsel that his discharge should be upgraded to an honorable discharge or, alternatively, a general (under honorable conditions) discharge as a matter of clemency. He contends the severity of his discharge is excessively harsh in light of six mitigating factors. These factors are; he contends his service-connected PTSD and TBI strongly contributed to his aberrant misconduct during his otherwise honorable service; his chain of command did not acknowledge the signs of his serious condition and failed to get him the appropriate care; SPC K. at the Fort Hood Mental Health Clinic did not follow appropriate clinical guidelines and inappropriately diagnosed and failed to treat him; the Army's internal evaluation of its own procedures bolster his claim that his chain of command, his chaplain, and SPC K., failed to recognize and treat his PTSD and TBI; and that if he was in the Army today he would have received the treatment he needed and deserved because of various mechanisms adopted by the Army since his service for identifying PTSD and TBI. Various Army and DoD, internal evaluations explain how the Soldiers systemically suffered from poor mental health care during his service; and if he served in the Army today, he would have received the treatment that he needed and deserved because after OIF I and II, PDHRA, ANAM, and a host of other mechanisms that screen for PTSD or TBI are currently instituted. 3. Counsel further argues that the ADRB panel that conducted the initial records review erred because they were presented with an incomplete and partially inaccurate record. Counsel asks the Board to consider the evidence and expert opinions presented with this appeal concerning his PTSD, and how that strongly contributed to his misconduct. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 24 April 2014 b. Discharge Received: Bad Conduct Discharge c. Date of Discharge: 13 March 2008 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD RE-4 e. Unit of assignment: Rear Detachment, Special Troops Battalion Fort Hood TX f. Current Enlistment Date/Term: 2 April 2003, 5 years g. Current Enlistment Service: 4 years, 1 month, 14 days h. Total Service: 4 years, 1 month, 14 days i. Time Lost: 302 days j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 31B10, Military Police Specialist m. GT Score: 99 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (dates NIF) q. Decorations/Awards: NDSM, GWOTSM, ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 2 April 2003, for a period of 5 years. He was 18 years old at the time of enlistment and a high school graduate. His record indicates he served in Iraq. His record does not contain any evidence of acts of valor or meritorious achievements. He completed 4 years, 1 month, and 14 days of military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The service record indicates on 23 October 2006, the applicant was found guilty in accordance with his pleas by a special court-martial of desertion. Specifically, on 16 November 2005, the applicant did, with the intent to avoid or shirk important duty, namely deployment to and service in Iraq, quit his unit and did remain so absent in desertion until 5 June 2006. 2. He was sentenced to a Bad Conduct Discharge (BCD), confinement for 4 months, forfeiture of pay in the amount of $849.00 per month for 4 months, and reduction to the grade of E-1. 3. On 7 March 2007, the applicant was placed on excess leave for 373 days (070307-080313). 4. On 13 April 2007, the sentence was approved except for the part extending to the BCD. 5. The record of trial was forwarded to The Judge Advocate General of The Army for review by the Army Court of Criminal Appeals. The court affirmed the sentence. On 20 December 2007, the Convening Authority ordered the bad conduct discharge be executed. 6. The applicant was separated from the Army on 13 March 2008, with a Bad Conduct Discharge, a separation code of JJD, and a reentry code of 4. 7. The applicant’s service record shows he had 302 days of lost time; 202 days for going AWOL from 16 November 2005 until his return on 5 June 2006; and 100 days for confinement by military authorities from 23 October 2006 until 30 January 2007, as a result of his court-martial sentence. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. DD Form 458 (Charge Sheet), dated 13 February 2006, indicating the applicant was charged with violation of the UCMJ, Article 85 (Desertion) on 17 December 2005, with the intent to avoid shirk important duty, namely: preparation for and deployment in support of Operation Iraqi Freedom, quit his unit, to wit: Special Troops Battalion (Rear) (Provisional), 4th Infantry Division (Rear) (Provisional), located at Fort Hood, TX, and did remain so absent in desertion until an unknown date. 2. Report of Return of Absentee, dated 15 June 2006, indicating the applicant returned to military control on 5 June 2006. 3. Special Court-Martial Order 12, dated 13 April 2007, which shows the applicant was charged with intent to shirk important service, namely deployment to and service in Iraq, quit his unit, to wit: Division Troops Company, Special Troops battalion, 4th Infantry Division (Mechanized), Fort Hood, TX, and did remain so absent in desertion until on or about 5 June 2006. The sentence was adjudged on 23 October 2006. The punishment he received consisted of a BCD, confinement for 4 months, forfeiture of $849.00 for 4 months and reduction to the grade of E-1. The sentence was approved as adjudged and, except for the part of the sentence extending to the BCD was ordered to be executed. 4. Special Court-Martial Order 193, dated 20 December 2007, which ordered the BCD to be executed. EVIDENCE SUBMITTED BY THE APPLICANT: 1. The applicant through legal counsel provided a DD Form 293, and a list of exhibits A-III (as noted with the application documents): a. DOD Instruction 1332.28 (2 April 2004) b. Report of B.L., M.D. (31 March 2014) c. Fort Hood Mental Health Intake Questionnaire (30 June 2004) d. Fort Hood Mental Health Record of Care (30 June 2004) e. Affidavit of R.L. Jr. f. Affidavit of B.D. g. Affidavit of R.L. Sr. h. Letter from P.M. i. Veterans Affairs Gulf War Medical Examination Questionnaire (16 January 2004) j. Department of Veterans Affairs, DSM-5 Criteria for PTSD k. Records of M.H., PhD l. Letter of Dr. M.H. (27 January 2014) m. Department of Veterans Affairs Discharge Decision Letter n. Curriculum Vitae of B. L., MD o. E-Mail from Mr. L. (26 January 2004) p. Instant Message Conversation (21 January 2004) q. Reference Letter of B.K., SGT r. DOD Directive 6490.1 (CAO 24 November 2003) s. DOD Instruction 6490.4 (28 August 1997) t. US Army Medical Department Command Directed Evaluation u. PDI-Health.mil, DoD/VA Clinical Practice Guideline for Post-Deployment Health Evaluation and Management v. Memorandum for Commanders, Intensive Implementation of the Department of Defense/Veteran Affairs (DOD/VA) Post-Deployment Health Evaluation and Management Clinical Practice Guideline (PDH CPG) (20 May 2003) w. OIF MHAT Report (16 December 2003) x. OIF-II MHAT-II Report (20 January 2005) y. Government Accountability Office (GAO) Report to Congressional Committees Post Traumatic Stress Disorder (May 2006) z. GAO Report to Congressional Committees Mental Health and Traumatic Brain Injury Screening Efforts (May 2008) aa. Army G-1 Human Resources, PDHRA bb. Army.mil, PDHRA Factsheet cc. DOD Instruction 6490.08, Command Notification Requirements to Dispel Stigma in Providing Mental Health Care to Service Members (17 August 2011) dd. Army Regulation 40-501, Standards of Medical Fitness (29 August 2003) ee. Record of Trial (23 October 2006) ff. ADRB Decision on Record Review (15 May 2013) gg. Letter from Dr. M.H. (21 December 2012) hh. Photograph of Injury (6 February 2004) ii. Service Medical Records jj. Applicant's DD-214 kk. Employment Certificates for applicant ll. Reference Letter of R. C. mm. Department of Veterans Affairs Rating Decision (20 February 2014) nn. Letter from K.A. oo. Letter from J.C. pp. Letter from M.M. qq. Memorandum for Assistant Secretaries of the Army, Navy, and Air Force, “Baseline Pre-deployment Neurocognitive Functional Assessment-Interim Guidance,” (28 May 2008) rr. Iraq’s 'Sunni Triangle' scene of new deadly attacks, CNN WORLD, 22 January 2004 ss. H.L., D.M., US shifted to war footing in Iraq ‘s ‘Sunni Triangle,’ The Christian Science Monitor, 10 November 2003 tt. News Article, Army: No Reports of Saddam in Tikrit, Associated Press, 14 October 2003 uu. TRADOC Regulation 350-6: Enlisted Initial Entry Training Policies and Administration (7 November 2013) vv. News Article, Specialist J.P., Turret Shields offer Additional Protection for Gunners, Defense Video & Imagery Distribution System, 15 October 2004 ww. News Article, National Defense, H.K., Amid Bursting Bombs, Services Seek Better Body Armor, October 2005 xx. Imperfect Protection for the Turret Gunner, Strategy Page, 10 May 2006 yy. BG R.M.B., Program Executive Office Soldier Portfolio FY2008, US Army and Team Soldier aaa. C.K., Steep Cost of Military Vehicles outlined in Army report, CNN US, 27 January 2011 bbb. L.S.N, The Salt Lake Tribune: Obituaries, 17 December 2005 ccc. American Deaths, The Boston Globe, 21 December 2005 ddd. SPC L.S.N., Desert News, 12 December 2005 eee. Applicant's Enlistment and Entry Paperwork fff. E-mail from applicant, 7 February 2004 ggg. Letter from S.L. hhh. Army Regulation 600-8-22, Military Awards, 11 December 2006 (CAO 24 June 2013) iii. Affidavit of J.M. 2. Several documents submitted with the application show the applicant had been diagnosed with PTSD related to his military service in Iraq. On 20 February 2014, the Veteran's Administration granted him a 50 percent disability rating for service-connected PTSD and a 10 percent rating for service connected tinninitus. The letter provided by psychiatrist (exhibit B) indicates the symptoms of PTSD began soon after his arrival in Iraq and reached their peak about a year after his return from Iraq. At no point up to the present day had he been free of symptoms. POST-SERVICE ACTIVITY: The applicant states, in effect, that he has held post service employment with a parks department and as an aerospace inspector. REGULATORY AUTHORITY: 1. 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. 2. 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. The ADRB may not upset the finality of a court-martial conviction. It may only act to change the characterization of service. 3. 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. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request through legal counsel for an upgrade of the characterization of his discharge was carefully considered. 2. After examining the applicant’s record of service, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions for the following reasons: a. overall length and quality of his service. The applicant served four years of a five year enlistment, b. he served a combat tour in Iraq, and c. in light of the clear evidence of PTSD, a BCD in retrospect is too harsh. If the applicant had a firm diagnosis of PTSD and indication of TBI, this would have been mitigating at his trial, in turn would have led to a more lenient sentence. 3. This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct. The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 4. The records show the proper discharge and separation authority procedures were followed in this case. 5. It is recommended the Board grant clemency in the form of an upgrade to the characterization of service to general, under honorable conditions. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 8 September 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: Yes Witnesses/Observers: Yes Board Vote: Character Change: 5 No Change: 0 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: General, Under Honorable Conditions Change Reason to: No Change Change Authority for Separation: No Change Change RE Code to: No Change Grade Restoration to: NA Other: NA Legend: AMHRR - Army Military Human Resource Record FG - Field Grade IADT – Initial Active Duty Training RE - Reentry AWOL - Absent Without Leave GD - General Discharge NA - Not applicable SCM- Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial CG - Company Grade Article 15 HD - Honorable Discharge OAD - Ordered to Active Duty UNC - Uncharacterized Discharge CID - Criminal investigation Department MP – Military Police OMPF - Official Military Personnel File UOTHC - Under Other Than Honorable Conditions ADRB Case Report and Directive (cont) AR20140007003 Page 8 of 8 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1