1. Applicant's Name: a. Application Date: 7 November 2017 b. Date Received: 14 November 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to general (under honorable conditions). The applicant seeks relief contending, in pertinent part and in effect, it has been several years since his discharge and it has affected his seeking employment. He was diagnosed with PTSD prior to his discharge and had post-concussion syndrome, which contributed to his discharge. He regrets making a poor decision at a very young age, a mistake he desires to take back and make a better decision-he has suffered the consequences of his discharge. He has six children to support. 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) there was a nexus between a behavioral health or medical condition and the misconduct, which led to the applicant's separation from the Army. The Applicant's in-service diagnosis of PTSD and mental status at the time of the misconduct mitigate the offense. In a records review conducted at Arlington, VA on 19 October 2018, 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 an in-service diagnosis of PTSD. Accordingly, by a 3-2 vote, 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: 3 June 2010 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 14, dated 10 August 2009, the applicant was found guilty of the following charge: The Charge: Violation of Article 85, UCMJ, for without authority and intent to avoid hazardous duty, namely OIF V, quit his unit and remained absent in desertion until 5 October 2008. (2) Adjudged Sentence and Date: To be reduced to Private E-1, to be confined for 171 days, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 25 March 2009. (3) Date Sentence Approved: On 10 August 2009, only so much of the sentence extending to reduction to E-1 and confinement for 141 days 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 17, dated 11 February 2010, the promulgated findings and sentence of SPCM Order No. 14, dated 10 August 2009, had finally been affirmed on 14 October 2009, and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 11 February 2010 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 November 2007 / 5 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13B10, Cannon Crewmember / 3 years, 7 months (includes excess leave for 270 days from 7 September 2009 to 3 June 2010, creditable for all purposes except pay and allowances) d. Prior Service / Characterizations: RA (3 January 2006 to 13 November 2007) / HD e. Overseas Service / Combat Service: SWA / Iraq (12 May 2007 to 18 April 2008, according to ERB) f. Awards and Decorations: ARCOM; NDSM; ICM-CS; GWOTSM; ASR; OSR; CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Orders No. 14, dated 10 August 2009, and No. 17, dated 11 February 2010, described at the preceding paragraphs 3c(1)-(3), and 3c(4), respectively. i. Lost Time / Mode of Return: 307 days (AWOL: 18 April 2008 to 5 October 2008, for 171 days, and Military Confinement: 25 March 2009 to 7 August 2009, for 136 days) / unknown mode of return from AWOL and released from military confinement upon completing sentence j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 7 November 2017. 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 from bad conduct discharge to general (under honorable conditions). The applicant's available record of service and the issues 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. 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., his complete separation packet, and documentary evidence of any behavioral health diagnoses and PTSD diagnosis) for the Board's consideration because they are not available in the official record. The applicant contends that his current discharge has affected seeking employment. However, the Board does not grant relief or clemency for the purpose of gaining employment or enhancing employment opportunities. The applicant contends that he regrets making a poor decision at a very young age. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 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 19 October 2018, 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 an in-service diagnosis of PTSD. Accordingly, by a 3-2 vote, 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 AR20180006594 1