1. Applicant's Name: a. Application Date: 25 February 2017 b. Date Received: 6 March 2017 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, that prior to enlisting in the Army, he had no behavioral issues, he was never in trouble with the law and he had no drug or alcohol issues. He was one of the best young aspiring musicians the country had to offer. After he joined the Army and during a 12-month deployment, his unit experienced some of the worst combat and living conditions, the war had to offer. After returning home from Afghanistan severe symptoms of Post-Traumatic Stress Disorder unknowingly began to surface in him and his daily life. He states, instead of being treated properly, which he had already begun, he was wrongfully Court Martialed, given a Bad Conduct Discharge and sent to prison. For him, he basically believes he was sentenced to death by the Department of Defense. At his court-martial, his platoon leader spoke highly of the applicant's service and the type of Soldier that he was. He was the golden military Soldier who was going to push and go all the way. As the deployment went on, he now understands, as trauma began to manifest in himself, he started to quickly demoralize. He states that killing became funny, which it had to be, because it was scary as hell, but better than sex. For the longest time all the applicant could think about was going back and that he would never be the same. After his redeployment, the early signs of PTSD and TBI began to surface. He had no respect for authority and everything was boring. He did not enjoy anything like he used to, and he began to contemplate suicide. He would later make two attempts on his own life in the following couple years, and it seemed that no one was listening to his cries for help. He believes that no one cared. He was just a problem, a man sick in his head, used up by the Army, and then was harshly punished, after giving everything for the men next to him and his country, which included his sanity. He states, he extended his original enlistment to go back to Afghanistan, but, he was flagged, for redeployment due to his psychological problems. Shortly after his unit was deployed, he was court-martialed and sent to military prison. He was told by his original leadership, while an inpatient at Cumberland hall psychiatric hospital, that they knew what he had been through and that he was just really messed up. He was told that he was going to receive an honorable or medical discharge and be sent on his way home. After being released from the hospital, there was a new rear detachment leadership in place, which told him, "that they were going to make an example out of [him]." He honestly did not know right from wrong or what PTSD really was. He was still at war in his mind, which he was diagnosed with PTSD (chronic), anxiety disorder, mood disorder, insomnia, stress due to family issues, and illegal drug use at his sanity board. He should not have been court-martialed, he was suicidal and homicidal, using drugs and alcohol, and suffering in his mind. He was charged with conspiracy against the government, when really it was the government that had conspired against him. He states, he struggles with his PTSD daily. After attending both inpatient hospitalization in the best program for PTSD at the VA Hospital in Montrose, NY, ongoing weekly therapy, and the will to never give up, he is now 100 percent service connected with the department of veteran's affairs for PTSD. It was hard for him to get treatment with a bad conduct discharge, he was clearly suffering from PTSD and it was clear he could not receive the benefits that need to survive or that had earned. He cannot get the necessary therapy or counseling that he direly needs to improve because of his discharge. He desires to go to school one day and use his GI Bill, which he fought way harder for than most any other Soldier. He now refrains from all drugs and alcohol and he attends regular appointments. He is determined to set the example for other combat veterans and never stop bettering his life. The applicant explains in detail his combat experiences and the traumas that he suffered while in combat, in the documents that he provides with his application. Per the Board's Medical Officer, based on the information available for review at the time to include the military electronic medical record, the applicant had a medical or behavioral health condition that was partially mitigating for the offenses which led to his separation from the Army. In summary, the available evidence does not support full mitigation as the diagnosis of PTSD can be associated with avoidance behaviors, such as AWOL, but is not reasonably related to misconduct of distributing drugs and other offenses that led to Court-Martial, which was not mentioned in VA records. Instead SM reported that he was honorably discharged for his misconduct and that he was diagnosed with PTSD and TBI in service, which was false. In a records review conducted at Arlington, VA on 27 June 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) a. Reason/Authority/Codes/Characterization: Court-Martial, Other / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 11 February 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 2, dated 19 March 2014, on 20 September 2013, the applicant was found guilty of the following: Charge I: Article 86. Plea: Guilty. Finding: Guilty.** Specification: Did, on or about 23 April 2013, without authority, absent himself from his unit and did remain so absent until he was apprehended on or about 27 June 2013. Plea: Guilty.* Finding: Guilty.** Charge II: Article 112a. Plea: Guilty. Finding: Guilty. Specification 1: Did, on or about 16 April 2013, wrongfully distribute Methylenedioxy-N- Methylamphetamine (MOMA), a schedule I controlled substance. Plea: Guilty. Finding: Guilty. Specification 2: Did, on or about 16 April 2013, wrongfully possess Methylenedioxy-N- Methylamphetamine (MOMA), a schedule I controlled substance. Plea: Guilty. Finding: Guilty. Specification 3: Dismissed. Specification 4: Dismissed. Specification 5: Did, on or about 17 April 2013, wrongfully possess 1.1 grams of marijuana, more or less. Plea: Guilty. Finding: Guilty. Additional Charge I: Article 81. Plea: Guilty. Finding: Guilty. Specification: Did, on or about 16 April 2013, conspire with Private (E1) T.J.G. to commit an offense under the Uniform Code of Military Justice, to wit: wrongful distribution of a controlled substance, and in order to effect the object of the conspiracy the said [applicant] did give Private (E1) T.J.G. 15 pills of Methylenedioxy-N-Methylamphetamine (MOMA), a Schedule I controlled substance and the said Private (E1) T.J.G. did then promise to repay the applicant once Private (E1) T.J.G. sold the 15 pills of MOMA to a third party. Plea: Guilty. Finding: Guilty. Additional Charge II: Article 95. Plea: Guilty. Finding: Guilty. Specification: Having been placed in pre-trial confinement in Christian County Jail, by a person authorized to order said accused into confinement did, at or near Hopkinsville, Kentucky, on or about 12 August 2013, escape from confinement. Plea: Guilty. Finding: Guilty. * Guilty, except the words, "he was apprehended"; to the excepted words, Not Guilty. ** Prior to entry of findings, upon motion by the trial counsel, the military judge dismissed the words "he was apprehended"; Finding: Guilty, except the figure "27"; substituting therefor the figure "8''; Of the excepted figure: Not Guilty; Of the substituted figure: Guilty. *** Prior to entry of findings, upon motion by the trial counsel, the military judge dismissed Specifications 3 and 4 of Charge II. (2) Adjudged Sentence: Reduction to E-1; to be confined for six months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 19 March 2014 / only so much of the sentence, a reduction E-1, confinement for six 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. The applicant was credited with 81 days of confinement towards the sentence to 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. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 6 January 2015 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 January 2010 / 4 years, 16 weeks / On 17 September 2012, the applicant extended his enlistment by one month, giving him a new ETS of 4 June 2014. b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years, 6 months, 16 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (12 September 2010 - 27 July 2011) f. Awards and Decorations: ACM-CS, ARCOM, MUC, NDSM, GWOTSM, ASR, OSR, NATOMDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Seven Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)" effective 6 June 2012; From "CMA" to "PDY," effective 25 July 2012; From "PDY" to "Absent Without Leave (AWOL)," effective 23 April 2013; From "AWOL" to "Dropped From Rolls (DFR)," effective 24 May 2013; From "DFR" to "PDY," effective 11 June 2013; From "PDY" to "CMA," effective 20 September 2013; and, From "CMA" to "PDY," effective 27 November 2013. i. Lost Time / Mode of Return: 195 days (AWOL, 23 April 2013 - 8 June 2013) / NIF (CMA, 1 July 2013 - 27 November 2013) / Released from CMA j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his VA disability rating decision, dated 25 April 2015, which reflects the applicant was rated 100 percent disability for PTSD with major depressive disorder. 5. APPLICANT-PROVIDED EVIDENCE: DA Form 1695; DA Form 3340-RDD Form 214; DD Form 293; Self-authored statement; VA Disability Rating Decision with allied documents; and, VA Treatment Letter. 6. POST SERVICE ACCOMPLISHMENTS: He states, he now refrains from all drugs and alcohol and he attends regular appointments. 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. 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 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 the Veterans Administration has granted him a service connected disability for Post-Traumatic Stress Disorder (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. It appears the applicant's Special Court-Martial determined that he knew the difference between what was right and wrong. The applicant contends that he was told that he was going to receive an honorable or medical discharge and be sent on his way home. 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 Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant contends that an upgrade of his discharge would allow him medical and educational benefits through the use of the GI Bill. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does 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 applicant contends that he had good service which included a combat tour. 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 applicant contends that he was having personal issues 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 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 27 June 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 a 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 / 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 AR20170004531 1