1. Applicant's Name: a. Application Date: 27 March 2017 b. Date Received: 3 April 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of bad conduct discharge to general (under honorable conditions) or honorable. The applicant seeks relief contending, in pertinent part and in effect, that prior to serving in combat, served honorably and creditably in basic, AIT and at an assignment in Korea. When the applicant arrived at the next unit under 4th Infantry Division, the unit was already deployed to Iraq, and joined them in September of 2003. Upon returning from deployment in March 2004, and about a month later, the applicant experienced flashbacks, night terrors, and profuse sweating. The applicant suffered from PTSD, anxiety, personality disorder, panic attacks, and homicidal and suicidal thoughts. The symptoms caused the applicant to abuse drugs and alcohol and led to a destructive path ending in a court-martial and bad conduct discharge. The applicant submitted a "narrative statement" provided to the Nobles County Veterans Service, Officer B. 'Brock' B. The applicant performed and served well prior to and during the combat tour. The applicant suffered the symptoms of PTSD, including other mental and physiologically disabling conditions, only after returning from Iraq. The applicant should have been treated for the medical conditions and given a disability discharge with honorable conditions or a general (under honorable conditions) discharge, in order to pursue care and treatment for the combat-related illnesses. (The applicant detailed the combat tour in Iraq, the events and circumstances surrounding the re-deployment, behavioral health conditions, and the incidents that led to the current discharge.) The applicant provided a history of employments following the discharge, and current employment with an ethanol industry as a supervisor. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate no information regarding the applicant. In summary, there is insufficient information to make a statement regarding medical mitigation and the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 11 January 2019, and by a 5-0 vote, the Board determined that clemency is warranted based on length and quality of service, and matters surrounding the discharge. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to Under Than 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-3 / Bad Conduct b. Date of Discharge: 26 September 2007 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 4, dated 10 March 2005, the applicant was found guilty of the following charges: Charge I: Six specifications of violating Article 86, UCMJ; Specification 1: absenting himself from his unit on 15 October 2004 and remained absent until 18 October 2004. Specifications 2 through 6: failing to go to his appointed place of duty at the prescribed time on five separate occasions, on 3 August, 5 August, 10 August, 12 August, and 14 October 2004. Charge II: Violation of Article 91, UCMJ, for disobeying an NCO on 14 October 2004. Charge III: Two specifications of violating Article 112a, UCMJ, for wrongfully using methamphetamines between 21 August 2004 and 23 August 2004, and wrongfully using marijuana between 23 July 2004 and 13 August 2004. (2) Adjudged Sentence and Date: Forfeiture of $795 pay per month for three months, to be confined for 105 days, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 29 December 2004. (3) Date Sentence Approved: On 10 March 2005, only so much of the sentence extending forfeiture of $795 pay per month 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: According to Special Court-Martial Order 14, dated 9 February 2006, the promulgated findings and sentence of SPCM Order No. 4, dated 10 March 2005, had finally been affirmed on 9 February 2006, and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 9 February 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 May 2002 / 3 years (there is no record of any reenlistments or extension(s) to this enlistment) b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 (according to his AAM certificate) / 92F10, Petroleum Supply Specialist / 2 years, 5 months, 3 days (Basis on which the "Net Active Service" arrived at is NIF; however, there would have been an excess leave for a certain period, creditable for all purposes except pay and allowances, which is NIF.) d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: NIF / NIF f. Awards and Decorations: AAM; however, none are listed on his DD Form 214 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Orders No. 4, dated 10 March 2005, and No. 14, dated 9 February 2006, described at the preceding paragraphs 3c(1)-(3), and 3c(4), respectively. i. Lost Time / Mode of Return: NIF (None recorded on DD Form 214) j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 27 March 2017, and a self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, that he is currently employment with an ethanol industry as a supervisor 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 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 incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and his accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The applicant's contentions regarding his behavioral health issues; wherein, his misconduct was due to his PTSD, were carefully considered. However, the service record does not support the applicant's claim for any behavioral health issues or PTSD diagnoses, nor did the applicant provide any documentary evidence of any behavioral health or PTSD diagnoses. 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., documentary evidence of any behavioral health diagnoses and PTSD diagnosis) for the Board's consideration because they are not available in the official record. Although the applicant did not present any issues of several missing information on his DD Form 214 (i.e., decorations, medals, badges, citations, and campaign ribbons awarded or authorized, his foreign service(s), and any reenlistment(s) following his enlistment of 2 May 2002), such request for changes does not fall within the purview of this Board. Thus 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. 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 11 January 2019, and by a 5-0 vote, the Board determined that clemency is warranted based on length and quality of service, and matters surrounding the discharge. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to Under Than 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: Under Than Honorable Conditions 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 AR20170006622 1