1. Applicant's Name: a. Application Date: 3 October 2017 b. Date Received: 10 October 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable. However, the evidence of record shows the applicant received a bad conduct discharge at the time of his separation. The applicant seeks relief contending, in effect, his undiagnosed PTSD contributed to his uncharacteristic actions and the need to self-medicate resulted in an unfavorable discharge status. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV) the applicant may have had a partially mitigating behavioral health condition at the time that led to the applicant's discharge. PTSD would be mitigating for substance abuse but not for adulterating a urine sample. In a records review conducted at Arlington, VA on 3 October 2018, and by a 3-2 vote, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, the Board determined that clemency is warranted based on the applicant's length of service, to include combat service, a prior period of honorable service and post-service diagnosis of PTSD. 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: 31 January 2007 c. Separation Facts: NA (1) Date of Notification of Intent to Separate: NA (2) Basis for Separation: The applicant was found guilty by a Special Court-Martial of the following offenses; wrongful use of cocaine between (30 May 2004 and 3 June 2004); and failing to obey a lawful regulation, by placing water in his urine sample during a unit urinalysis (3 June 2004). Plea: Not Guilty, but Guilty of the lesser included offense of willful dereliction of duty. Finding: Not Guilty, but Guilty of the lesser included offense of willful dereliction of duty. On 6 October 2004, he was sentenced to confinement for 45 days and a bad-conduct discharge. On 13 December 2004, the sentence was approved. The record of trial was forwarded to The US Army Court of Criminal Appeals for review. On 6 April 2006, The US Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. On 14 September 2006, the sentence was finally affirmed and Article 71(c) having been complied with, the bad conduct discharge was ordered to be executed. (3) Recommended Characterization: NA (4) Legal Consultation Date: NA (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 31 January 2007 / Bad Conduct 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 April 2004 / 6 years b. Age at Enlistment / Education / GT Score: 20 years / GED Certificate / 109 c. Highest Grade Achieved / MOS / Total Service: E-5 / 19K20, M1 Armor Crewman / 6 years, 5 months, 6 days d. Prior Service / Characterizations: RA, 19 July 2000 to 11 April 2004 / HD e. Overseas Service / Combat Service: Korea, Iraq f. Awards and Decorations: NDSM, KDSM, ASR, OSR, PUC g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial, see paragraph 3c(2) above. i. Lost Time / Mode of Return: Confinement military authorities for 35 days, 6 October 2004 to 11 November 2004. He also had 811 days of excess leave, 12 November 2004 to 31 January 2007. j. Diagnosed PTSD / TBI / Behavioral Health: Heritage Counseling Inc. mental health document, dated 13 June 2017, relates that problems addressed were intimate relationship conflicts, anxiety and PTSD. He also had an Axis I diagnosis of adjustment disorder, with anxiety and prescribed medication. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); four support statements; Heritage Counseling Inc. mental health documents (seven pages); medication list; and a DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: None submitted 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 III establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and 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. 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 the characterization of service from under other than honorable conditions to honorable. However, the evidence of record shows the applicant received a bad conduct discharge at the time of his separation. 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 seeks relief contending, his undiagnosed PTSD contributed to his uncharacteristic actions and the need to self-medicate resulted in an unfavorable discharge status. The applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that undiagnosed PTSD contributed to his uncharacteristic actions. 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 third party statements provided with the application speak highly of the applicant performance. However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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 judicial due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 3 October 2018, and by a 3-2 vote, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, the Board determined that clemency is warranted based on the applicant's length of service, to include combat service, a prior period of honorable service and post-service diagnosis of PTSD. 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 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 AR20170017797 1