1. Applicant's Name: a. Application Date: 25 July 2018 b. Date Received: 10 August 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of a bad conduct discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, the discharge has prevented the applicant from employment opportunities, furthering an education and receiving benefits from the Veterans Administration for PTSD related issues. The applicant was an infantryman who served a combat tour in Afghanistan and while there, some battle buddies were killed or injured. The applicant does not attempt to justify the actions, which led to discharge, but rather explain the circumstances surrounding the discharge. The applicant states that since discharge, the applicant has realized what was wrong and that the applicant did ignorant and careless mistakes. The applicant has sought help and has completed an addiction recovery program. The applicant now has a family and does not want the past mistakes to affect their future. The applicant requests that the Board help the applicant receive the necessary help to have a more positive and productive future. 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 BH diagnoses while on active duty. The applicant does have any BH diagnoses from the VA. The applicant does not currently have a diagnosis of PTSD. In summary, the applicant does not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 13 November 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (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: 17 June 2014 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 16, dated 16 August 2013, the applicant was found guilty of the following: Charge I: Article 92, UCMJ. Plea: Guilty. Finding: Guilty. The Specification: At or near Fort Drum, New York, on or about 9 June 2012, violate a lawful general order, to wit: Paragraph 4(e), Fort Drum Installation Policy Memorandum 10-30, Prohibition of Certain Unregulated Intoxicants, dated 21 April 2010, by wrongfully using Bath Salts. [On motion of Trial Counsel, the symbols, "4(e)" was deleted and the symbols, "4(b)" were substituted therefore; and the word, "using" was deleted and the word, "possessing" was substituted therefore.] Charge II: Article 128, UCMJ. Plea: Not Guilty. Finding: Dismissed. Charge Ill: Article 85, UCMJ. Plea: Not Guilty, but Guilty to a violation of Article 86, UCMJ, Absence Without Leave. Finding: Not Guilty, but Guilty of a violation of Article 86, UCMJ, absence without leave. The Specification: On or about 23 July 2012, without authority and with intent to remain away therefrom permanently, absent himself from his unit, to wit: C Troop, 3d squadron, 71st Cavalry Regiment, located at Fort Drum, New York, and did remain absent in desertion until he was apprehended on or about 29 January 2013. [On motion of Trial Counsel, the symbols, "29" were deleted and the symbols, "25" were substituted therefore.] Plea: Guilty, except the words, "and with intent to remain away therefrom permanently" and "in desertion." To the excepted words, Not Guilty. Finding: Guilty, except the words, "and with intent to remain away therefrom permanently," and, "in desertion." To the excepted words, Not Guilty. Charge IV: Article 121, UCMJ. Plea: Not Guilty. Finding: Dismissed. Charge V: Article 89, UCMJ. Plea: Guilty. Finding: Guilty. The Specification: At or near Fort Drum, New York, on or about 8 February 2013, behave himself with disrespect toward Captain (0-3) C.D., his superior commissioned officer, then known by the said applicant to be his superior commissioned officer, by saying to First Sergeant (E-8) C.S.S., "I fucking hate you and Captain D." and "CPT D. is a piece of shit," or words to that effect. Charge VI: Article 91, UCMJ. Plea: Guilty. Finding: Guilty. The Specification: At or near Fort Drum, New York, on or about 8 February 2013, was disrespectful in language toward First Sergeant (E-8) C.S.S., a superior noncommissioned officer, then known by the said applicant to be a superior noncommissioned officer, who was then in the execution of his office, by saying to him, "You are a bitch 1SG, and I fucking hate you," or words to that effect. (2) Adjudged Sentence: Reduction to E-1; to be confined for three months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 16 August 2013 / Only so much of the sentence, a reduction E-1, confinement 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. The applicant was credited with 82 days of confinement towards the sentence to confinement. (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 19 May 2014 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 June 2010 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 3 years, 4 months, 2 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (4 April 2011 - 17 March 2012) f. Awards and Decorations: ACM-CS, ARCOM, NATOMDL, NDSM, GWOTSM, ASR, OSR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 24 July 2012; and, From "AWOL" to "Dropped From Rolls (DFR)," effective 23 August 2012. i. Lost Time / Mode of Return: 226 days AWOL, 23 July 2012 - 24 January 2013 / Apprehended by Civil Authorities Confined by Military Authorities, 11 February 2013 - 24 March 2013 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he now has a family and has completed an addiction recovery program. 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. 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 a general (under honorable conditions) discharge. 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 contends an upgrade will allow him to receive benefits that will provide him help for his PTSD and his education. However, the service record contains no evidence of Post- Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. Further, eligibility for veteran's 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 applicant contends that an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 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 13 November 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change 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 AR20180011748 1