1. Applicant's Name: a. Application Date: 23 August 2016 b. Date Received: 26 August 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 had a mental health condition unknown to himself and the Army at the time of discharge, which was misdiagnosed and resulted in his uncharacteristic behavior leading to his discharge. The applicant contends he was suffering from delusions, depression, severe mood swings, and was unable to sleep. While serving on Active Duty at Fort Benning, GA, he went to several superiors informing them of his symptoms and voicing his concerns; however, he did not get the proper help he needed. He now knows that he had a bi-polar break in July of 2014, which caused his unknown condition to surface. The applicant was sent to a doctor and was treated with sleep medication, which only helped with the sleep issues, not the extreme highs and lows that were causing him to act out of character. The sleep medication aided him with sleep, but hindered him from getting up in the morning and caused him to be in a severe haze for hours. He was put in jail in January of 2015 and when asked why by his mother, his officer responded that it was for his own safety. He still was not treated for the severe depression and mental illness he was experiencing. At the time of his court-martial, he was told by his appointed attorney that he was not to say anything about his anxiety, depression, or auditory hallucinations because of a plea bargain that was drawn up between both sides. If it was mentioned, the applicant was instructed to disagree. The applicant agreed to the terms because he was told he could serve extended time in jail and his anxiety seemed more severe and auditory hallucinations became more frequent. He was afraid because he did not know what he was feeling and knew the medication he was receiving in jail was not helping. He returned home in April 2015 and his undiagnosed condition worsened. He sought treatment from outside civilian facilities; however, was denied several times until his mother was able to get him help at the VA. He was admitted to the VA's mental health ward where he spent a month. He was diagnosed with bi-polar, psychosis, sleep disorder, anxiety, and depression. He is now taking the proper medication needed to treat his disorder in order to function properly. The applicant is requesting an upgrade of his discharge so he can move on with his life in a positive manner and not be held back because of the mental illness he was suffering with at the time of discharge. Per the Board's Medical Officer, based on the information available for review at the time, the applicant did not have clear mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. The applicant's history is most consistent with frequent polysubstance abuse (which can manifest as a bipolar like illness). The applicant's frequent abdominal symptoms may (at least in part) be related to post-drug use withdrawal symptoms. The electronic medical records (AHLTA) were reviewed from July 2013 to October 2015. Laboratory results reviewed from 11 July 2013 thru February 2015. Radiology results reviewed from April 2014 thru March 2015. Clinical notes reviewed from July 2013 thru August 2015. Behavioral Health administrative note (11 December 2013) for out-processing (from training at Ft. Benning) - no history of service/program involvement. A limited review through the JLV (Joint Legacy Viewer) of the applicant's Veterans Administration records notes 26 problems, with eight VA entered including bipolar disorder, hallucinogen dependence, combination drug dependence, and nicotine dependence. The Veterans Administration has not service-connected the applicant. In a personal appearance hearing conducted at Arlington, VA on 27 February 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 Section IV / JDD / RE-4 / Bad Conduct b. Date of Discharge: 5 August 2016 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 9, dated 18 September 2015, on 26 March 2015, the applicant was found guilty of the Charges, in violation of the UCMJ Articles 86, 90, and 112a. (2) Adjudged Sentence: a reduction to E-1, confinement for three months, and to be discharged from the service with a bad-conduct discharge. (3) Date/Sentence Approved: 10 July 2003 / only so much of the sentence, a reduction E-1, confinement for three months, and a bad conduct discharge was approved and, except for that part of the sentence extending to a bad conduct discharge, would be executed. (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: 24 June 2016 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 July 2013 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-3 / 19K10, Armor Crewman / 2 years, 10 months, 11 days 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: Confinement Order, dated 23 January 2015, reflects the applicant was placed in pre-trial confinement prior to his Special Court-Martial for violation of the UCMJ, Articles 86-FTR (x8), 112a-wrongful use of controlled substances (x3), and 90-willfully disobeying a commissioned officer. Two Personnel Action forms, dated 20 April 2015, reflect the applicant's duty status changed from "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)," effective 23 January 2015, and from "CMA" to "PDY," effective 9 April 2015. i. Lost Time / Mode of Return: 76 days 76 days (Military Confinement, 23 January 2015 to 8 April 2015) 448 days (Excess Leave, 16 May 2015 to 5 August 2016) j. Diagnosed PTSD / TBI / Behavioral Health: VA Central Western Massachusetts Healthcare System documents reflect the applicant was diagnosed with bipolar disorder during his inpatient stay during the period of 19 August 2015 to 17 September 2015 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored letter; letters from a VA Psychiatrist, Congressman Neal, a VA Counselor, and a VA Doctor; and letters of support from the applicant's first line supervisor and mother. 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 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 he had a mental health condition unknown to himself or the Army at the time of discharge which was misdiagnosed and resulted in his uncharacteristic behavior and discharge. He contends he was suffering from delusions, depression, and severe mood swings, and was unable to sleep. The applicant's contentions and independent documents were noted; however, the service record does not support the applicant's contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): Record of Trial - 240 pages Additional documentary evidence - 111 pages b. The applicant presented no additional contention(s). c. Witness(es) / Observer(s): Michelle Dusza - Mother - (W) 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 27 February 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change 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 AR20160015227 1