1. Applicant's Name: a. Application Date: 20 October 2015 b. Date Received: 7 December 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 notified his chain of command and asked for help in March 2013, soon after his redeployment, when he noticed the signs of PTSD. He was sent to the installation Behavioral Health clinic, where they told him that he had anger issues and then suggested anger management. He clearly stated to the lieutenant that was taking care of him that his issues were bigger than just anger and that he needed more. The lieutenant then redirected him back to his first sergeant, who then decided there was nothing more he could do for him. After exhausting all his options within his battery level, he spoke to the chaplain about his current problems involving PTSD and how it was starting to affect his everyday relationships, including his marriage, which had begun to spiral towards separation. He informed the chaplain that the unit was not very helpful with his situation and asked him for a better resource to solve his issues. Soon after speaking with the chaplain, he was ordered to the battery commander's office where he met with the commander and the first sergeant. The conversation between him and the chaplain was repeated to him word for word by his commander and then he was scolded on how not to abuse the chain of command and to make sure his platoon sergeant was present when addressing an officer, to include the chaplain. Feeling as though he could not trust the unit in any way, he felt forced to help himself by seeking out help on his own. He went to the post clinic and began treatment for his PTSD and was diagnosed by a post doctor. He started the process to be chaptered out of the Army for the severity of his condition. Once he started going to his appointments, his first sergeant did not agree with what was taking place, so he had his platoon sergeant write him negative counseling statements daily. By this time, his wife had left him and had taken their son because she did not know how to deal with his PTSD in their home. At this point, he made the decision to be with them for support as he checked himself into a mental hospital. He was reported AWOL for all seven days of his volunteer admittance into the clinic. Upon completion of his inpatient care at the mental health hospital, he began to receive numerous negative counseling statements on a daily basis. In his entire career, he had never received a counseling statement for anything negative up until him stating that he needed help. His chain of command, told him they felt back doored and that he was going to pay for it. After that he was placed under a pretrial confinement order and placed in a federal detention center for 90 days, where he awaited trial. Upon completion of the trial they gave him the option to remain in jail for another 90 days and wait for his other than honorable discharge or take the bad conduct discharge and be released the same day. After the whole ordeal and feeling like he had enough of everything around him, he chose to go home and accept the bad conduct discharge, knowing it was not fair to him. Per the Board's Medical Officer, based on the information available for review at the time, the applicant has a mental-health record that included marital problems in 2009. His mental-health unraveled in Spring of 2013. It appears continuing marital problems, the murder of his brother in Buffalo, NY, and an aggressive response to misconduct that appears to have been driven by his symptoms led to his Bad Conduct discharge by a Special Court-Martial. The applicant's diagnoses in AHLTA include Adjustment Disorder, Depression, Chronic PTSD, Panic Disorder, and PTSD. His symptoms were severe enough that when he was sent to be cleared for discharge on 17 May 2013, the examining psychiatrist declined, saying the applicant's PTSD symptoms were too severe and needed treatment. The applicant did obtain treatment and when re-examined on 12 July 2013 was cleared for discharge; however, the psychiatrist retained diagnoses of PTSD and Depression for the applicant. He further noted the applicant had had large drop in his PCL score (a measure of PTSD symptoms) since being treated. It should be worth noting that at least one of the applicant's AWOLs was to seek treatment. Also, during his AWOL to see his wife in Houston, he had to be hospitalized because of expressing suicidal thoughts on Facebook. In Spring of 2013, the applicant was a human being in crisis. This is not a hard case. To the extent that this Court Martial directed discharge can be mitigated, I believe the behavioral health case for it is overwhelming. In a records review conducted at Arlington, VA on 24 February 2017, and by a 5-0 vote, the Board determined that clemency is warranted based on his length and quality of service, to include his combat service, his prior period of honorable service, and the circumstances surrounding his discharge and AWOL (i.e. severe family matters, arbitrary and capricious actions by the command, and his in-service diagnosis of PTSD & OBH). Accordingly, the Board voted to grant full relief by upgrading the applicant's characterization of service to honorable. 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 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 28 May 2015 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 117, dated 15 August 2014, on 13 February 2014, the violations of the UCMJ, pleas, and findings were as follows: Charge I, violation of Article 86 (AWOL), four specifications: FTR from 17 to 19 April 2013; guilty consistent with plea; FTR on 25 June 2013; guilty consistent with plea; FTR from 4 to 9 July 2013; guilty consistent with plea; and, FTR from 16 July to 2 December 2013; guilty consistent with plea. Charge II, violation of Article 95, fleeing apprehension by running from an NCO (16 July 2013); guilty consistent with plea. Charge III, violation of Article 128, unlawfully strike SSG M in the face with his arm (16 July 2013); not guilty consistent with plea. (2) Adjudged Sentence: Reduction to private E-1, forfeiture of $1,021 pay per month for six months, confinement for 180 days and a Bad Conduct discharge. (3) Date/Sentence Approved: 15 August 2014 / only so much of the sentence, a reduction E-1, confinement for 180 days, and a bad conduct discharge was approved and, except for that part of the sentence extending to a bad conduct discharge, would be executed. The automatic forfeiture of pay required by Article 58b, UCMJ, was waived effective that date for a period of six months with direction that those funds be paid to Mrs. S for the financial support of the dependents of the accused. The accused was credited with 154 days of confinement towards the sentence to confinement. The sentence to confinement was served. (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. Pursuant to Article 66, UCMJ, the findings of guilty of specification 3 of Charge I and of Charge II and its specification were set aside and dismissed. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 16 April 2015 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 November 2009 / 5 years b. Age at Enlistment / Education / GT Score: 23 / GED / 99 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25B10, IT Specialist / 6 years, 9 months, 24 days d. Prior Service / Characterizations: RA, 7 January 2008 to 27 November 2009 / HD e. Overseas Service / Combat Service: SWA / Iraq (30 October 2009 to 15 October 2010) and Kuwait (25 September 2011 to 21 September 2012) f. Awards and Decorations: ARCOM, AAM-4, MUC, AGCM, NDSM, GWOTSM, GWOTEM, ASR, OSR-2, MOVSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in preceding paragraph 3c(1). i. Lost Time / Mode of Return: 211 days 138 days (AWOL, 16 July to 1 December 2013) 73 days (Pretrial confinement, 2 December 2013 and 13 February 2014) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 of the application. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with his 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. 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 contends he was suffering from PTSD, which affected his behavior and ultimately led to his discharge. 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 his leadership felt "backdoored" and that the applicant was going to pay for it. 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. The applicant contends that he had good service, which included two combat tours. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. 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 24 February 2017, and by a 5-0 vote, the Board determined that clemency is warranted based on his length and quality of service, to include his combat service, his prior period of honorable service, and the circumstances surrounding his discharge and AWOL (i.e. severe family matters, arbitrary and capricious actions by the command, and his in-service diagnosis of PTSD & OBH). Accordingly, the Board voted to grant full relief by upgrading the applicant's characterization of service to honorable. 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: Honorable c. Change Reason to: No Change d. Change SPD / RE Code to: No Change e. 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 AR20160000230 1