1. Applicant's Name: a. Application Date: 3 May 2018 b. Date Received: 29 May 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade from a bad conduct discharge to general (under honorable conditions). The applicant seeks relief contending, in pertinent part and in effect, was under duress and had PTSD prior to the court- martial. The applicant should have never been subjected to the situation the applicant was in at the time. The applicant needs help and access to the services provided by VA for disabilities resulting from service. The applicant lost hearing in the right ear, suffers from PTSD and depression. 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 diagnoses of Adjustment Disorder with anxiety, Major Depression, and Nicotine Dependence. VA records indicate the applicant has been diagnosed with Panic Disorder and PTSD. In summary, the applicant had a BH diagnosis that is partially mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 7 June 2019, and by a 4-1 vote, the Board determined that clemency is warranted based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service and post- service diagnoses of PTSD and OBH), and post-service accomplishments. 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 November 2006 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 10, dated 20 June 2005, the applicant was found guilty of the following charges: Charge I: Violations of Article 92, UCMJ, four specifications of failing to obey a lawful general order on divers and four separate occasions, between 15 May 2004 and 11 January 2005, by wrongfully possessing alcoholic beverages; by wrongfully consuming alcoholic beverages; by wrongfully selling alcoholic beverages; and by wrongfully transferring prescription drugs. Charge II: Violations of Article 112a, UCMJ, on divers' occasions between 15 November 2004 and 11 January 2005, two specifications of wrongfully using hashish and Valium, and one specification of wrongfully distributing Valium. (2) Adjudged Sentence and Date: To be reduced to the grade of E-1, forfeiture of $760 pay per month for 12 months, to be discharged from the service with a bad-conduct discharge, and confinement for eight months. The sentence was adjudged on 2 March 2005. (3) Date Sentence Approved: On 20 June 2005, the sentence was approved, except for the part of the sentence extending to a bad-conduct discharge, would be executed, and that the applicant would be credited with 51 days of confinement against the sentence of confinement. (4) Appellate Reviews: According to Special Court-Martial Order 103, dated 11 July 2006, the promulgated findings and sentence of Special Court-Martial Order No. 10, dated 20 June 2005, had finally been affirmed, and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 11 July 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 November 2003 / 3 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 114 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 11 months, 19 days (includes 472 days of excess leave on 7 August 2005, until 21 November 2006) d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: Hawaii / SWA, Afghanistan (NIF) f. Awards and Decorations: ARCOM; NDSM; GWOTSM; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 10, dated 20 June 2005, described at the preceding paragraphs 3(1)-(3). Special Court-Martial Order Number 103, dated 11 July 2006, described at the preceding paragraphs 3(4)-(5). i. Lost Time / Mode of Return: 147 days (Military confinement on 2 March 2005 to 26 July 2005) / The applicant was released upon completing his court-martial sentence. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 3 May 2018, with applicant-authored statement; four character reference/supporting statements; and DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, that over the past ten years since his discharge, he has matured, became a man and father, and regularly attends a worship center. His documentary evidence indicates that he is currently employed, and was described as being capable, faithful, and hard-working, and a committed young man. 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 from bad conduct discharge to general (under honorable conditions). 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. The applicant contends he needs access to VA services for his disabilities, such as suffering from PTSD and depression, which resulted from his service. His contentions were carefully considered. However, a careful review of the available record and the applicant's documentary evidence does not provide diagnoses of any behavioral health issues or any medical condition. However, if based on the available record, there is evidence that behavioral health issues symptoms existed, and 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. Insofar as the applicant needing access to VA services, eligibility for veterans' 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 third party statements provided with the application speak highly of the applicant's character and 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. In consideration of the applicant's post- service accomplishments, the Board can find that his accomplishments were or were not sufficiently mitigating to warrant clemency by changing his characterization of service. The available 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 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 7 June 2019, and by a 4-1 vote, the Board determined that clemency is warranted based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of PTSD and OBH), and post-service accomplishments. 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 AR20180007371 1