1. Applicant's Name: a. Application Date: 18 August 2016 b. Date Received: 3 October 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) or honorable. The applicant seeks relief contending, in pertinent part and in effect, he was a good Soldier. His chain of command had faith in his ability to perform numerous duties that were above his pay grade. After his tour in Iraq, he felt adrift and sought behavioral health care at Fort Carson. He spiraled out of control, yet his NCOs counted on him to police up other miscreants. His chain of command testified at his court-martial that he did not have PTSD, nor TBI, although they are documented in his medical records. Per the Board's Medical Officer, based on the information available for review at the time within the applicant's case files, AHLTA and JLV. AHLTA diagnoses include PTSD, chronic, Depression, Adjustment Disorder with depressed mood, Post-Concussion Syndrome with sensorineural hearing loss, Amphetamine Abuse, Barbiturate Abuse, Cocaine Abuse. AHLTA notes indicate applicant was exposed to multiple IED blasts while deployed. One blast resulted in him bleeding from his nose and ears. Applicant developed daily headaches, dizziness and tinnitus after incurring head injury. Diagnosed with mTBI and Post-Concussion syndrome. Applicant also diagnosed with PTSD related to his combat experiences. VA records contain no content since applicant is not eligible for VA services. Applicant was deployed from 8 Aug 2004 to 25 July 2005. His first positive urinalysis for cocaine was in Nov 2005. According to the psychiatry note, applicant's command decided not to send him to ASAP for treatment. Instead, he was demoted from E-4 to E-1. Review of the record indicates that despite his numerous positive urinalyses, he was never enrolled in an ASAP treatment program. Support letters provided by applicant indicate that applicant changed drastically after returning from deployment. Based on the information currently available, the applicant has two behavioral health conditions that mitigate some of the applicant's misconduct. As PTSD and mTBI are associated with poor judgement and the use of substances to self-medicate symptoms, there is a nexus between his PTSD/mTBI and his wrongful use of substances. As PTSD is associated with avoidant behaviors, there is a nexus between applicant's PTSD and multiple incidents of AWOL and Failure to Report. Neither PTSD nor mTBI mitigate willfully failing to give a proper urine sample and wrongfully receiving a stolen laptop computer. In a records review conducted at Arlington, VA on 8 December 2017 and by a 5-0 vote, after carefully examining the applicant's record of service during the period of enlistment under review, the Board determined the characterization of service was too harsh and that clemency is warranted based on the applicant's length and quality of service, to include combat service, being combat wounded, and the circumstances surrounding the discharge and AWOL (i.e. arbitrary and capricious actions by the chain-of-command, in-service OBH diagnosis and combat related TBI/PTSD diagnoses). Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to general, under 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 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 23 September 2008 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 20, dated 13 July 2007, the applicant was found guilty of the following charges: Charge I: Violations of Article 86, UCMJ, three specifications of being absent without leave on 14 February 2007, and remained absent until 15 February 2007; being absent without leave on 20 February 2007, and remained absent until 22 February 2007; and being absent without leave on 27 February 2007, and remained absent until 8 March 2007. Charge II: Violations of Article 112a, UCMJ, two specifications for wrongfully using cocaine between 16 December 2006 and 18 December 2006, and wrongfully using methamphetamine between 16 December 2006 and 18 December 2006. Additional Charge I: Violation of Article 92, UCMJ, for being derelict in the performance of his duties by failing to give a proper uncontaminated urine specimen on 7 September 2006. Additional Charge III: Violation of Article 134, for wrongfully receiving stolen property of PFC D.G.D. on 26 February 2007, as amended. (2) Adjudged Sentence and Date: Forfeiture of $867 pay per month for four months, to be confined for four months, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 25 July 2007. (3) Date Sentence Approved: On 13 July 2007, except for that part of the sentence extending to a Bad Conduct Discharge, would be executed. (4) Appellate Reviews: According to SPCM Order No. 70, dated 24 April 2008, the promulgated findings of SPCM Order No. 20, dated 13 July 2007, had been finally affirmed and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 24 April 2008 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 January 2004 / 3 years b. Age at Enlistment / Education / GT Score: 18 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 13B10, Cannon Crewmember / 4 years, 6 months, 20 days (includes excess leave for 404 days from 17 August 2007 to 23 September 2008, creditable for all purposes except pay and allowances) d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (8 August 2004 to 25 July 2005) f. Awards and Decorations: NDSM; ICM-CS; GWOTSM; KDSM; ASR; OSR; CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order No. 14, dated 12 June 2007, promulgated the following findings and sentence of a Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge on 25 April 2007: Charge I: Six Specifications of violating Article 86, UCMJ, for being AWOL on 15 February 2006, and remained absent until 24 March 2006, and failing to be at his appointed place of duty at the prescribed time on five separate occasions on 9 August 2006, 6 September 2006, and 4, 23, and 31 October 2006. Charge II: Violating Article 91, UCMJ, for disobeying an NCO on 6 September 2006. Charge IV: Four Specifications of violating Article 112a, UCMJ, for wrongfully using methamphetamine on three separate occasions between 5 February and 7 February 2006, 11 February 2006 and 13 February 2006, and 5 September 2006 and 7 September 2006, and wrongfully using cocaine between 5 February 2006 and 7 February 2006. The adjudged sentence of confinement for four months was approved on 12 June 2007. Special Court-Martial Order No. 20, dated 13 July 2007, described at paragraphs 3c(1) to (3). Special Court-Martial Order No. 70, dated 24 April 2008, promulgates the affirmation of the findings and sentence, and orders the execution of the Bad Conduct Discharge. i. Lost Time / Mode of Return: 52 days (AWOL: 16 February 2006 (amended by SPCM to read 15 February 2006) to 24 March 2006, for 37 days; 14 February 2007 to 15 February 2007, for two days; 20 February 2007 to 22 February 2007, for three days; and 27 February 2007 to 8 March 2007, for 10 days) / NIF, but records indicate the applicant returned to his unit j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: Discharge Summaries, dated 20 July 2007, reflect diagnoses of: work-related acoustic trauma (explosive); an adjustment disorder with depressed mood; chronic post-traumatic stress disorder; and post-concussion syndrome. Discharge Summaries, dated 12 October 2005, indicate the applicant had a head injury, "Had LOC after explosion," and a "TBI while in Iraq last episode [June 2005]." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 18 August 2016; health records, dated 20 July 2007, and 12 October 2005; five character reference/supporting statements; Secretary of Defense memorandum, dated 3 September 2014; and memorandum for Secretaries of the Military Departments, dated 24 February 2016. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial (Other). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JJD" will be assigned an RE Code of 4. National Defense Authorization Act 2017 provided specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD; TBI; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. Conditions documented in the service 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 a mental health condition, including PTSD; TBI; or sexual assault/harassment 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 characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors 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. Caution shall be exercised 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) or honorable. The applicant's available 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 misconduct incidents. 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 the charge 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. In consideration of the applicant's service accomplishments and quality of his service prior to these incidents, the Board can find that his complete period of service was not sufficiently mitigating to warrant an upgrade of his characterization of service. The applicant's contentions regarding his behavioral health issues which involved having been diagnosed with PTSD and TBI after his deployment were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder and traumatic brain injury symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate clemency by changing the characterization of service. 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 8 December 2017 and by a 5-0 vote, after carefully examining the applicant's record of service during the period of enlistment under review, the Board determined the characterization of service was too harsh and that clemency is warranted based on the applicant's length and quality of service, to include combat service, being combat wounded, and the circumstances surrounding the discharge and AWOL (i.e. arbitrary and capricious actions by the chain-of-command, in-service OBH diagnosis and combat related TBI/PTSD diagnoses). Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to general under 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: General, Under Honorable Conditions c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD/RE Code to: No Change f. 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 AR20160019078 1