1. Applicant's Name: a. Application Date: 15 November 2018 b. Date Received: 16 November 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, had honorable service with immediate reenlistment; however, the misconduct/behavior following return from Afghanistan stemmed from self-medicating with opioids from PTSD. 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 Disturbance of Emotions, Anxiety, Cocaine Abuse, Depression, Opioid Dependence, and Insomnia. Post-service, the applicant has a 100% service-connected rating for PTSD. The applicant has received treatment from the VA for PTSD and Polysubstance Abuse. In summary, the applicant had a BH diagnosis that was partially mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 10 April 2019, and by a 5-0 vote, 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 the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD), a prior period of honorable service. 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: 2 July 2014 c. Separation Facts: (1) Pursuant to Special Court Martial Empowered to Adjudge a Bad Conduct Discharge: The applicant was found guilty of the following: Charge I, in violation of Article 85: Without authority and with intent to remain away permanently; absent himself from his unit from 29 January 2011 until 29 January 2011 in desertion; Charge II, in violation of Article 108: Without proper authority sold to Cash Pawn of Fayetteville, North Carolina, assorted military equipment, of a value of more than $500.00, military property of the United States between on or about 28 June 2010 and 8 August 2010; and In violation of Article 112a: Wrongfully used heroin between on or about 17 January 2011 and 21 January 2011 (2) Adjudged Sentence: On 3 June 2010, the applicant was sentenced to be confined for 10 months and to be discharge 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 remaining finding of guilty. Pursuant to Article 66, UCMJ. Only so much of the sentence as provides for confinement for six months, and a bad-conduct discharge, adjudge on 3 June 2011, as promulgated in Special Court-Martial Order Number 16, Headquarters, 82d Airborne Division, APO AE 09355, dated 19 May 2012, has been finally affirmed. The applicant was credited with 124 days of confinement against the sentence to confinement. The portion of the sentence extending to confinement had been served. Article 71(c) having been complied with, the bad-conduct discharge was ordered to be executed. (5) Date Sentence of BCD Ordered Executed: 30 May 2014 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 March 2010 / 3 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-5 / 13F1P, Fire Support Specialist / 6 years, 11 months, 12 days d. Prior Service / Characterizations: RA, 28 February 2007 to 17 March 2010 / HD e. Overseas Service / Combat Service: SWA / Iraq (5 December 2008 to 13 November 2009) f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR, CAB g. Performance Ratings: 2 October 2009 to 1 October 2010, Marginal h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Orders as described in previous paragraph 3c(2) i. Lost Time / Mode of Return: AWOL for 1 day (29 January 2011 to 29 January 2011) and military confinement as a result of Special Court-Martial for 142 days (9 February 2011 to 30 June 2011). The DD Form 214 under review also includes 1098 days of excess leave (1 July 2011 to 2 July 2014). j. Diagnosed PTSD / TBI / Behavioral Health: NIF; however, document submitted by the applicant from the Department of Veterans Affairs, show the applicant was awarded 100 percent service connected disability for post-traumatic stress disorder with secondary opioid use disorder, in sustained remission, on maintenance therapy (also claimed as anxiety) 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; letter of support from his mother; letter from the Department of Veterans Affairs, showing the applicant was awarded 100 percent service connected disability for post-traumatic stress disorder with secondary opioid use disorder, in sustained remission, on maintenance therapy (also claimed as anxiety), and DD Form 214. 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 was separated under the provisions of Chapter 3, AR 635-200 with a bad-conduct discharge. The narrative reason specified by Army Regulations for a discharge under this chapter is "Court-Martial Other," and the separation code is "JJD." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The appropriate RE code is 4. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending, that he had honorable service with immediate reenlistment; however, his misconduct behavior stemmed from his self-medicating for PTSD after his return from Afghanistan. The applicant's contentions were noted; his service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered and the applicant is to be commended. The fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. 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 10 April 2019, and by a 5-0 vote, 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 the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD), a prior period of honorable service. 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 AR20180014739 1