1. Applicant's Name: a. Application Date: 24 January 2019 b. Date Received: 14 February 2019 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 pertinent part and in effect, during the period of his misconduct, the applicant was suffering from PTSD. The applicant was self-medicating with alcohol and drugs. The applicant was denied medical attention for the PTSD and rehabilitation for an alcohol and drug addiction. 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 Acute Reaction to Stress, Adjustment Disorder, Alcohol Dependence, Anxiety, Alcohol Abuse, Nicotine Dependence, Occupational Problem, and Chronic PTSD. The applicant does not have any VA records for review. The applicant provided civilian documentation with diagnoses of Schizophrenia. In summary, the applicant has 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 25 September 2019, and by a 5-0 vote, the Board determined that clemency is warranted based on a post-service diagnosis of PTSD and OBH. 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: 10 May 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 12, dated 26 May 2009, the applicant was found guilty of the following charges: Charge I: Violations of Article 91, UCMJ, two specifications (Specifications 1 and 3) of disobeying an NCO on two separate occasions on 18 November 2008, and 5 December 2008, and two specifications (Specifications 2 and 4) of being disrespectful in language towards an NCO on two separate occasions on 18 November 2008, and 5 December 2008. Charge II: Violation of Article 92, UCMJ, for violating a lawful general regulation by wrongfully purchasing for and/or giving alcoholic beverages to persons under 21 years of age on 28 November 2008. Charge III: Violation of Article 111, UCMJ, for physically controlling a vehicle while drunk on 12 November 2008. Charge IV: Violation of Article 121, UCMJ, for stealing a bottle of Jack Daniels liquor, property of AAFES, on 28 November 2008. Charge V: Violation of Article 134, UCMJ, for operating a motor vehicle without having a valid driver's license in his possession and was unable to display a valid driver's license upon demand by a law enforcement officer on 1 December 2008, such action was prejudicial to good order and discipline in the Armed Forces. (2) Adjudged Sentence and Date: To forfeit $933 pay per month for 10 months, and to be discharged from the service with a bad-conduct discharge (Note that the corrected page 2 of 3 pages of SPCMO No. 12 is not available.) The sentence was adjudged on 24 February 2009. (3) Date Sentence Approved: On 26 May 2009, only so much of the sentence as provides for forfeiture of $933 pay per month for seven months, confinement for seven 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. (4) Appellate Reviews: According to Special Court-Martial Order 4, dated 26 January 2010, the promulgated findings and sentence of Special Court-Martial Order No. 12, dated 26 May 2009, had finally been affirmed on 26 January 2010, and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 26 January 2010 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 June 2007 / 6 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 84 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11C10, Indirect Fire Infantryman / 4 years, 2 months, 19 days (includes 223 days of excess leave from 30 September 2009 to 10 May 2010, creditable for all purposes, except pay and allowances) d. Prior Service / Characterizations: RA (11 August 2005 to 29 June 2007) / HD e. Overseas Service / Combat Service: SWA / Iraq (23 October 2006 to 9 January 2008) f. Awards and Decorations: NDSM; ICM-CS; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 12, dated 26 May 2009, described at the preceding paragraphs 3(1)-(3). Special Court-Martial Order Number 4, dated 26 January 2010, described at the preceding paragraphs 3(4)-(5). i. Lost Time / Mode of Return: 194 days (Military Confinement on 24 February 2009 to 5 September 2009) / The applicant completed his court-martial confinement sentence. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 24 January 2019. 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 of his 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 contends he was suffering from PTSD, which led to his misconduct. 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. 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. Although the applicant is scheduled for a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., a behavioral health diagnoses by a competent medical authority) for the Board's consideration because they are not available in the official record. Insofar as the applicant having access to VA services for medical treatment, 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 applicant contends the discharge was unjust because he was denied medical treatment and rehabilitation for his alcohol and drug addictions. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 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 25 September 2019, and by a 5-0 vote, the Board determined that clemency is warranted based on a post- service diagnosis of PTSD and OBH. 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 AR20190002466 6