1. Applicant's Name: a. Application Date: 31 August 2017 b. Date Received: 3 November 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of his discharge from bad conduct discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, his discharge should be upgraded due to serving good years, earning an AGCM, GWOTSM, and an AAM, and after learning of his medical conditions that he was not aware of. He was confined to Camp LeJeune after false accusations were filed against him, until he was discharged. An upgrade would allow him to receive the medical care and help he had earned. Per the Board's Medical Officer, based on the information available for review at the time, case files, AHLTA and JLV were reviewed. AHLTA notes indicate he was diagnosed with Adjustment Disorder and Attention Deficit Hyperactivity Disorder while on active duty. The diagnosis of ADHD was made while the applicant was confined. Review of the VA records indicates applicant was diagnosed with Schizoaffective Disorder and Cannabis Abuse when he was hospitalized at the VA in 2011. The VA notes indicate that the applicant reported a history of being jailed for 8 months while on active duty for attempted murder because of false statements made by his girlfriend. The VA notes document that, at the time of hospitalization, the applicant was experiencing auditory hallucinations and racing thoughts. He denied nightmares. Subsequent VA notes indicate that the applicant is not eligible for outpatient care at the VA because of the nature of his discharge. Medical documentation provided by the applicant consists of a medical document dated 3 Nov 2015 entitled "Competency Restoration" which diagnoses the applicant with PTSD (F43.10). No information regarding etiology and/or stressors leading to this PTSD diagnosis is provided. Without this information, no statement regarding mitigation can be made. In a records review conducted at Arlington, VA on 1 June 2018, 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 that clemency is warranted based on the applicant's length and quality of service, a prior period of honorable service, and the circumstances surrounding the discharge (i.e. post-service diagnosis of OBH). 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: 21 October 2011 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 16 December 2010, the applicant was found guilty of the following charges: Charge I: Violation of Article 86, UCMJ, on divers occasions between 12 November 2009 and 17 November 2009, the applicant failed to go to his appointed place of duty at the prescribed time. Charge IV: Violation of Article 92, UCMJ, on 2 November 2009, he violated a lawful general regulation by wrongfully filling his specimen bottle with liquid other than his own urine during a lawful drug test. Charge V: Violation of Article 112a, UCMJ, between 29 July 2009 and 27 August 2009, he wrongfully used marijuana. The Additional Charge: Violation of Article 112a, UCMJ, between 21 October 2009 and 20 November 2009, he wrongfully used marijuana. (2) Adjudged Sentence and Date: To be reduced to the grade of Private (E-1), to be confined for 6 months, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 21 June 2010. (3) Date Sentence Approved: On 16 December 2010, the sentence as adjudged was approved and except for that part of the sentence extending to a Bad Conduct Discharge, would be executed. He was also to be credited with 223 days of confinement against his sentence of confinement. (4) Appellate Reviews: According to SPCM Order No. 61, dated 1 September 2011, the promulgated findings of SPCM Order No. 18, dated 16 December 2010, had been finally affirmed on 10 May 2011, and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 1 September 2011 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 September 2006 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 24 / 14 years/ NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 92Y10, Unit Supply Specialist / 4 years, 6 months, 13 days (includes excess leave for 488 days from 21 June 2010 to 21 October 2011, creditable for all purposes except pay and allowances) d. Prior Service / Characterizations: RA (22 September 2006 to 3 December 2009)/ HD e. Overseas Service / Combat Service: None / None f. Awards and Decorations: AAM; AGCM; NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two DA Form 4187 (Personnel Actions) reflect that the applicant's duty status changed from Present for Duty to Confined by Military Authorities, effective 4 December 2009, and from Confined by Military Authority to Present for Duty, effective 21 June 2010. Special Court-Martial Orders No. 18, dated 16 December 2010, and No. 61, dated 1 September 2011, described at the preceding paragraphs 3c(1) and 3c(4), respectively. United States Army Court of Criminal Appeals Decision, dated 10 May 2011, affirmed the findings of guilty and the sentence. i. Lost Time / Mode of Return: 199 days (Military Confinement from 4 December 2009 to 20 June 2010) / Released from confinement upon completing court-martial sentence j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's documentary evidence: Medical Record, Progress Notes, dated 26 August 2011, shows "AXIS I:" diagnosis of "Schizoaffective Disorder." Medical record, an Integrated Treatment Plan, dated 16 October 2015, indicates a behavioral diagnosis of "F43.10: Post-traumatic stress disorder, unspecified." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 31 August 2017; Tuition fee printout for Ms. X., dated 2 October 2017; supporting statement, dated 31 October 2017; pages 1 and 2 of three-page sworn statement, dated 24 November 2009; medical records, dated 26 August 2011 and 16 October 2015; DD Form 214; Pretrial Confinement summary review, dated 19 November 2009, rendered by a military magistrate; and two counseling statements, dated 30 July 2007, and 26 February 2008. 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 the characterization of his discharge from bad conduct discharge to 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 the incidents of misconduct, the Board can find that his complete period of service was or was not sufficiently mitigating to warrant clemency by upgrading his characterization of service. Although the applicant did not directly raise his behavioral health issues, a careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with post-traumatic stress disorder symptoms existed. 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 applicant contends that an upgrade of his discharge would allow him to receive medical care and help that he had earned, perhaps referring to veterans' benefit. However, eligibility for veterans' benefits to include health care and 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 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 1 June 2018, 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 that clemency is warranted based on the applicant's length and quality of service, a prior period of honorable service, and the circumstances surrounding the discharge (i.e. post-service diagnosis of OBH). 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 AR20170019141 1