1. Applicant's Name: a. Application Date: 7 March 2018 b. Date Received: 2 July 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of a bad conduct discharge to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, that none of the mental health documentation and diagnosis was considered at the time of court-martial. The applicant contends there was significant documentation to support a medical discharge however, this was not considered. The applicant was not given the opportunity to continue the enlistment even with the extra ordinary character witnesses and letters to the court, one of which was from a Congressional Medal of Honor winner. The applicant is being punished for a medical condition of which the applicant could not control and is not and has not been considered. The applicant made every attempt to use the resources provided by the Army but did not get any relief from the issues. In addition, this discharge seems severely harsh and at the very least believes the applicant should have been offered to complete the obligations as so many facing the same issues as the applicant were awarded. 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 active duty records due to the period of service. The applicant does not currently have any VA records. In summary, there is insufficient evidence to determine if the applicant had 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 19 June 2019, and by a 5-0 vote, the Board determined that clemency is warranted. 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 Discharge b. Date of Discharge: 21 May 2004 c. Separation Facts: (1) Pursuant to Special Court Martial empowered to adjudge a Bad Conduct Discharge: The applicant was found guilty of the following: In violation of Article 85; Without authority on or about 7 May 2001 and with intent to avoid hazardous duty, namely deployment to Kuwait, quit his unit and remained so absent in desertion until 5 January 2002; and Without authority on or about 9 January 2002, and with intent to remain away therefrom permanently, absented himself from his unit and remain so absent in desertion until he was apprehended, on or about 10 June 2002. (2) Adjudged Sentence: On 7 January 2003, the applicant was sentenced to reduction to E-1, confinement for 6 months, and to be discharged from the service with a bad-conduct discharge. (3) Date/Sentence Approved: The sentence was approved, and except for the part of the sentence extending to a bad-conduct discharge was executed. (4) Appellate Review: The record of trial was forwarded to The Judge Advocated General of the Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the sentence of a bad-conduct discharge, confinement for 6 months, and reduction to the grade of private E-1, adjudged on 7 January 2003, as promulgated in Special Court-Martial Order Number 35, Headquarters, Fort Stewart, Fort Stewart, Georgia, dated 28 August 2003, having been finally affirmed. The automatic forfeiture s were waived from 21 January 2003 for 6 months and the full amount directed to be paid to (A.L.K.) to support the accused's dependents. The applicant was credited with 3 days of confinement against the sentence to confinement. Article 71(c) having been complied with, the bad-conduct discharge was ordered to be executed (5) Date Sentence of BCD Ordered Executed: 2 March 2004 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 March 2000 / 4 years b. Age at Enlistment / Education / GT Score: 27 / HS Graduate / 121 c. Highest Grade Achieved / MOS / Total Service: E-2 / 12B10, Combat Engineer / 3 years, 9 months, 23 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Orders as described in previous paragraph 3c(2) i. Lost Time / Mode of Return: Total time list 494 days: AWOL 400 days (7 May 2001 to 10 June 2002) / apprehended and Confinement Military Authorities 94 days (7 January 2003 to 11 April 2003) / released as a result of completion. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. The DD Form 214 under review makes reference to 407 days of excess leave (11 April 2003 to 21 May 2004). 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 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 general (under honorable conditions). 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 that none of his mental health documentation and diagnosis were considered at the time of his court-martial. He contends there was significant documentation to support a medical discharge however, this was not considered. He was not given the opportunity to continue his enlistment even with the extra ordinary character witnesses and letters to the court, one of which was from a Congressional Medal of Honor winner. He believes he is being punished for a medical condition of which he could not control and is not and has not been considered. He made every attempt to use the resources provided by the Army but did not get any relief from his issues. In addition this discharge seems severely harsh and at the very least he believes he should have been offered to complete his obligations as so many facing the same issues as he was awarded. The applicant's contentions were noted; however, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The 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 character of the applicant's discharge is commensurate with his overall service 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 June 2019, and by a 5-0 vote, the Board determined that clemency is warranted. 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 AR20180012544 4