1. Applicant's Name: a. Application Date: 6 April 2016 b. Date Received: 11 April 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, he is seeking veterans benefits based on PTSD. The applicant raised no issues of propriety or equity for the Board's consideration. Per the Board's Medical Officer, based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. A limited review through the JLV (Joint Legacy Viewer) of the applicant's Veterans Affairs records notes seven problems (six VA entered) including Depressive disorder (current 2014 entry), strain of Achilles tendon, Impulse Control disorder (last updated 1 Oct 1998; multiple BH sessions/visits under this diagnosis), Simple schizophrenia (last updated 19 Aug 1999; NOTE: this was an 'ER' diagnosis entry (not repeated)), acetabular fracture, rotator cuff sprain and others. No current active medication prescriptions for behavioral/mental conditions. The Veterans Affairs has not service-connected the applicant. The applicant does NOT have a VA diagnosis of PTSD. In a records review conducted at Arlington, VA on 26 June 2017, 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: 3 August 2007 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 22, dated 30 August 2007, the violations of the UCMJ, pleas, and findings were as follows: Charge I, violation of Article 85, Plea: Not Guilty, but guilty of the lesser included offense of AWOL, violation of Article 86. Finding: Guilty, consistent with the plea. Charge II, violation of Article 86, Dismissed. Charge III, violation of Article 90, Disobeyed a lawful command to perform extra duty (15 April 2004); Guilty, consistent with the plea. Additional Charge, violation of Article 112a, wrongfully used marijuana (between 4 February and 4 March 2005); Guilty, consistent with the plea. (2) Adjudged Sentence: Reduced to the grade of E-1, forfeiture of $822 pay per month for four months; confinement for four months, and to be discharged from the service with a bad-conduct discharge. (3) Date/Sentence Approved: 30 August 2005 / The sentence was approved and, except for that portion of the sentence extending to a bad conduct discharge, was executed. The accused was credited with forty-nine (54) days of confinement against the sentence of 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. On 14 April 2006, The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 26 January 2007 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 June 2002 / Indefinite b. Age at Enlistment / Education / GT Score: 34 / Associate's Degree / 109 c. Highest Grade Achieved / MOS / Total Service: E-6 / 92G10, Food Service Operations / 17 years, 10 months, 25 days d. Prior Service / Characterizations: RA, 13 August 1983 - 7 August 1989 / HD RA, 8 August 1989 - 30 March 1992 / HD RA, 31 March 1992 - 22 November 1993 / HD RA, 23 November 1993 - 22 November 1996 / HD USAR, 23 November 1996 - 20 March 1998 / HD Break in Service RA, 23 June 2000 - 24 June 2002 / HD e. Overseas Service / Combat Service: Germany, Hawaii, SWA / Kuwait - Saudi Arabia (5 November 1990 - 23 April 1991) f. Awards and Decorations: ARCOM, AAM-6*, AGCM-3*, NDSM-2*, SWASM-3BSS*, GWOTSM, HSM, NCOPDR-2*, ASR, OSR, KLM-KU, KLM-SA, ALB / Note: Based on the applicant's service record, the awards noted with an asterisk (*), were not properly reflected on the applicant's DD Form 214. g. Performance Ratings: June 2002 - March 2003, Among The Best April 2003 - August 2003, Among The Best h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial as described in previous paragraph 3c. FG Article 15, dated 2 February 2004, for being AWOL from 23 December 2003 until 22 January 2004; failing to go at the time prescribed to his appointed place of duty (26 January 2004); wrongfully used marijuana (22 October and 20 November 2003). The punishment consisted of a reduction to E-5; forfeiture of $1,184 pay per month for two months; and, extra duty for 45 days. FG Article 15, dated 10 March 2004, for failing to go at the time prescribed to his appointed place of duty on 15 separate occasions (between 7 and 19 February 2004); for being AWOL (20 February 2004 and 2 March 2004); and, disobeyed a lawful command (between 20 February and 2 March 2004). The punishment consisted of a reduction to E-4; forfeiture of $945 pay per month for two months; and, extra duty for 45 days. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 369 days (AWOL, 15 April 2004 - 3 March 2005); (CMA, 27 April 2005 - 12 June 2005) / Surrendered to Military Authorities j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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, the issues and documents submitted with his application were carefully reviewed. The applicant raised no issues of propriety or equity for the Board's consideration. 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 desires an upgrade to allow him to receive veteran's benefits based on PTSD. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The applicant's service record is void of a mental status evaluation. It appears the military judge determined he knew the difference between what was right and wrong. Further, eligibility for veteran's benefits to include medical benefits do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 26 June 2017, 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 new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20160007588 1