1. Applicant's Name: a. Application Date: 4 January 2017 b. Date Received: 9 January 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, if his unit did not deactivate, he would not have received a BCD discharge. The unit he was reassigned to, did not honor his reenlistment contract that provided for 12 months of no PCS or deployment. He lost a child to miscarriage from the stress of the Army-his request for leave to take care of his wife was denied. Not knowing, he was suffering from PTSD and when his focus was not clear, he went AWOL but realized he was wrong. He completed two tours, reenlisted for another five years, and received an AGCM. Serving his country at that time was the most a man could offer his country. He found pride in serving and he would serve again, if called upon. His foreign service was not added to his DD Form 214, as he served in Iraq from 13 February 2005 to June 2005. Per the Board's Medical Officer, based on the information available for review at the time, case files, AHLTA and JLV were reviewed. AHLTA files contain no mental health notes. Med list in AHLTA indicates applicant was prescribed fluoxetine (an antidepressant), trazadone (antidepressant used for insomnia) and melatonin (medication used for insomnia) in Nov 2012. Applicant underwent a physical exam while confined in Oct 2012. This note states applicant has the following medical problems: snoring loudly, sleep disturbances, back symptoms. There is no other medical documentation in AHLTA indicating why the aforementioned medications were prescribed. VA records contain no data regarding applicant. Based on the currently available information, the applicant does not have a mitigating behavioral health disorder In a records review conducted at Arlington, VA on 4 April 2018, 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: 23 January 2015 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 18, dated 14 November 2013, the applicant was found guilty of the following charge: The Charge: Violations of Article 86, UCMJ, for being absent without leave on 25 May 2006, and remained absent until 15 February 2007; being absent without leave on 20 February 2007, and remained absent until when he was apprehended on 6 April 2012. (2) Adjudged Sentence and Date: To be confined for six months, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 24 September 2012. (3) Date Sentence Approved: On 14 November 2013, only so much of the sentence extending to reduction to E-1 and confinement for two months, except for that part of the sentence extending to a Bad Conduct Discharge, would be executed. (4) Appellate Reviews: NIF, but according to a subsequent Special Court-Martial Order would have affirmed the promulgated findings of SPCM Order No. 18, dated 14 November 2013, and further ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: A subsequent reenlistment contract is NIF / NIF (His ERB indicates an ETS date of 1 January 2010.) b. Age at Enlistment / Education / GT Score: 26 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92F10, Petroleum Supply Specialist / 9 years, 1 month, 22 days (includes excess leave for 774 days from 11 December 2012 to 23 January 2015, creditable for all purposes except pay and allowances) d. Prior Service / Characterizations: USAR (2 December 1999 to 3 November 2002) / NA RA (4 November 2002, for three years and a subsequent reenlistment is NIF) e. Overseas Service / Combat Service: NIF / NIF (Note his NCOER on file indicates he served in Iraq.) f. Awards and Decorations: ARCOM; AAM-2; NDSM; GWOTSM; ASR g. Performance Ratings: One NCOER for period January 2005 thru May 2005, Among the Best (as associated to his claim of having served in Iraq, for "Responsibility & Accountability," the evaluation contains comments that he "submitted unblemished aviation fuel samples upon entering Iraq enabling the MEDEVAC Aircraft to fly mission safe," and "challenged his Soldiers to be safety conscious, thereby eliminating any accidents during deployment." h. Disciplinary Action(s) / Evidentiary Record: Report of Return of Absentee, dated 6 April 2012, indicates the applicant was apprehended by civil authorities on 6 April 2012, at Nolanville, Texas, and returned to military control. Two memoranda, dated 7 June 2012, subject: Disqualification for the Army Good Conduct Medal, indicate the applicant was disqualified from receiving the AGCM awards for period 14 June 2005 to 14 June 2008, and 14 June 2008 to 14 June 2011, due to his AWOL statuses. DA Form 4187, Personnel Action, dated 2 October 2012, indicates the applicant's duty status changed from PDY to Confinement by Military Authorities (CMA), effective 29 September 2012, with a remark that the applicant was "confined as a result of a court-martial." Special Court-Martial Order No. 18, dated 14 November 2013, described at paragraphs 3c(1) to (3). i. Lost Time / Mode of Return: 2,293 days (AWOL from 25 May 2005 to 5 April 2012, for 2,243 days, and CMA from 19 September 2012 to 7 November 2012, for 50 days) / The applicant was apprehended by civil authorities and returned to military control. The latter period, the applicant was released after serving a court-martial sentence. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 4 January 2017, with his self-authored statement. 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 honorable. The applicant's available record of service, and the issues and document 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 the AWOL incident, the Board can find that his complete period of service was sufficiently mitigating to warrant an upgrade of his characterization of service. The applicant contends that he was having family issues, such as losing a child by miscarriage and having his request for leave to take care of his wife denied that affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant's contentions regarding his behavioral health issues which involved not knowing he had PTSD, were carefully considered. 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, although he failed to respond to a request made by this office for the required documentary evidence of his medical condition. If the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., diagnoses of behavioral health condition(s) as diagnosed by a competent medical authority), for the Board's consideration because they are not available in the official record. The applicant contends his Foreign Service tour is not annotated on his DD Form 214. However, the applicant's requested change to the DD Form 214 does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. Based on the available record, 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 4 April 2018, 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. Change SPD Code to: No Change f. Change RE Code 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 AR20170000965 4