1. Applicant's Name: a. Application Date: 9 October 2015 b. Date Received: 23 October 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to honorable. The applicant seeks relief contending, in effect, he would like an upgrade of his discharge for the purpose of being able to receive VA Benefits. The applicant contends his discharge was improper because he was not given enough legal advice and he was pressured into taking a plea of guilty. He was told by his Air Force doctor in Iraq that he had PTSD. He went AWOL because of an episode that people were after him so he ran and went AWOL. He believes he should have been medically discharged due to his PTSD instead of receiving a bad conduct discharge. Per the Board's Medical Officer, based on the information available at the time, the applicant does not have a mitigating Behavioral Health condition for the offense which led to his discharge from the Army. Both the military and VA electronic medical records were reviewed. In a records review conducted at Arlington, VA on 15 February 2017, and by a 4-1 vote, the Board determined that clemency is warranted based on the fact that a bad conduct discharge is too harsh for an AWOL offense and stealing a camera from his unit. In addition, the applicant lacked impulse control and ingested cleaning fluid twice as suicide gestures to manipulate the command. The applicant had several mental health visits, none diagnosing mitigating OBH. Accordingly, the Board voted to grant partial relief by upgrading the applicant's characterization of service to under other than 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 / JDD / RE-4 / Bad Conduct b. Date of Discharge: 17 December 2010 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad Conduct Discharge: As announced by Special Court-Martial Order Number 11, dated 10 March 2010, the applicant was found guilty of the following charges: Article 121, of stealing an Olympus Stylus 720 SW digital camera, military property of a value of about $964, the property of G Company 703d BSB, 4th BCT, 3rd Infantry Division, US Army; and, Article 86, Absent Without Leave 13 March 2008 to 4 December 2008) (Originally charged with violation of Article 85, Desertion, but was found Not Guilty) (2) Adjudged Sentence: On 8 May 2009, reduction to E-1, confinement for 9 months, and to be discharged from the service with a bad-conduct discharge. The action taken on 19 November 2009 was withdrawn. Only so much of the sentence as provides for reduction to the grade of E-1, confinement for six months and a Bad-Conduct Discharge was approved, and except for that part of the sentence extending to a Bad-Conduct Discharge was executed. The applicant was credited with 146 days of confinement against the sentence to confinement. (3) Date/Sentence Approved: 19 November 2009, only so much of the sentence as provides for reduction to the grade of E-1, confinement for six months and a Bad-Conduct Discharge was approved, and except for that part of the sentence extending to a Bad-Conduct Discharge was executed. The applicant was credited with 146 days of confinement against the sentence to confinement. (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. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence (5) Date Sentence of BCD Ordered Executed: 9 September 2010 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 August 2006 / 3 years, 26 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-3 / 63H10, Tracked Vehicle Mechanic / 4 years, 3 months, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two Personnel Action Forms, dated 1 June 2009 and 9 June 2009, reflects the applicant's duty status changed from "Present For Duty" to "Confined by Military Authorities," effective 8 May 2009, and from "Confined by Military Authorities" to "Present For Duty," effective 9 June 2009. i. Lost Time / Mode of Return: 31 days (Military Confinement, 8 May 2009 to 8 June 2009) / required time served 528 days (Excess Leave, 8 July 2009 to 17 December 2010) / NA j. Diagnosed PTSD / TBI / Behavioral Health: Medical documents (Problem List History) submitted by the applicant with a date range between 13 October 1995 and 13 October 2015, reflect the applicant was diagnosed with an adjustment disorder with anxiety and depressed mood. 5. APPLICANT-PROVIDED EVIDENCE: Online application; DD Form 293; DD Form 149; Special Court-Martial documents; medical records; medication list; problem list; and DD Form 214 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 general (under honorable conditions). The applicant's record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms there was full consideration of all faithful and honorable service, as well as, the incidents of misconduct. 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 Army Discharge Review Board (ADRB) 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. 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. The applicant contends his discharge was improper because he was not given enough legal advice and he was pressured into taking a plea of guilty. He was told by his Air Force doctor in Iraq that he had PTSD. He went AWOL because of an episode that people were after him so he ran and went AWOL. He believes he should have been medically discharged instead of discharged with a bad conduct discharge because of his PTSD. However, 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 not given enough legal advice and he was pressured into taking a plea of guilty. 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 applicant contends he was told by his Air Force doctor in Iraq that he had PTSD and that his going AWOL was the result of an episode that people were after him so he ran and went AWOL. The documents submitted by the applicant showing he was diagnosed with an adjustment disorder with anxiety and depressed mood 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 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 15 February 2017, and by a 4-1 vote, the Board determined that clemency is warranted based on the fact that a bad conduct discharge is too harsh for an AWOL offense and stealing a camera from his unit. In addition, the applicant lacked impulse control and ingested cleaning fluid twice as suicide gestures to manipulate the command. The applicant had several mental health visits, none diagnosing mitigating OBH. Accordingly, the Board voted to grant partial relief by upgrading the applicant's characterization of service to under other than 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: Under Other Than Honorable Conditions c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD/RE Code to: No Change f. Restore 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 AR20150016710 1