1. Applicant's Name: a. Application Date: 4 February 2019 b. Date Received: 12 March 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade from a bad conduct discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, experienced many traumatic events during two deployments to Iraq. At the time, the applicant was unaware about having PTSD until losing temper and physically harming a fellow Soldier during a field training exercise in South Korea. When the applicant was mandated to go through a medical assessment, the Army medical clinic diagnosed the applicant with PTSD. The applicant was prescribed medication and weekly support group counseling with fellow Soldiers. The Army Sanity Board issued a statement confirming the PTSD diagnosis. The Board further indicated that the "'PTSD diagnosis represent[ed] a serious mental illness with significant occupational impairment.'" The report emphasized that the field training exercise where the incident took place represented an environment with substantial similarity to deployment and could have increased the probability of intrusive memories and physiologic reactivity when the applicant was exposed to such environmental cues. The report added that it further impaired the applicant's ability to suppress emotional response to stress, thus significantly impacting the intensity of the reaction to the situation, which the applicant could have managed differently. After discharge, the applicant used alcohol to calm these anxieties and help the applicant sleep for the first couple of years, until it started to take a toll on health, wife, children, family and friends. The applicant has stopped consuming alcohol and started seeing a private psychiatrist, who prescribed medications. Although, the recovery has not been easy for the applicant and family. The applicant has not given up. The applicant is proud of the service in the Army and is most thankful for all the discipline and leadership skills that were learned. If the applicant knew of the PTSD prior to the day of the incident and taken steps to medicate, the incident would have been prevented. The applicant regrets and learned from this mistakes and illness. The applicant has since not been in any incident of such. The applicant continues the medication and counseling, and on the path to full mental recovery. An upgrade would allow more meaningful veterans' benefits, including the most important medical treatment. 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 PTSD. The applicant is 50% service-connected for PTSD from the VA. In summary, the applicant's BH diagnosis is not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 4 October 2019, and by a 5-0 vote, the Board denied the request for clemency 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: 3 February 2017 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 2, dated 16 April 2010, the applicant was found guilty of the following charges: Charge I: Violations of Article 93, UCMJ, for maltreatment of PVT L.M.H., a person subject to the applicant's orders, by striking him on the head and face with an M4 Rifle, causing a torn ear and cuts to the head, face, and check of PVT X on 13 June 2009, at a training center in Korea. Charge II: Violation of Article 128, UCMJ, for assaulting PVT X and inflicting grievous bodily harm upon PVT X on 13 June 2009. (2) Adjudged Sentence and Date: To be discharged from the service with a bad- conduct discharge. The sentence was adjudged on 17 December 2009. (3) Date Sentence Approved: On 16 April 2010, the sentence was approved; however, that the sentence extending to a Bad Conduct Discharge, would not be executed until completion of the appellate review of the case. (4) Appellate Reviews: According to Special Court-Martial Order 95, dated 22 July 2011, the promulgated findings and sentence of Special Court-Martial Order No. 2, dated 16 April 2010, had finally been affirmed, and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 22 July 2011 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 March 2004 / 3 years (There is no record of any reenlistment after this period, but additional years included period of impending UCMJ actions/post Special Court-Martial process.) b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 25L10, Cable Systems Installer/Maintainer / 16 years, 5 months, 13 days (includes 2,606 days of excess leave from 17 December 2009 to 3 February 2017, creditable for all purposes, except pay and allowances) d. Prior Service / Characterizations: RA (21 August 2000 to 25 March 2004) / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (4 August 2004 - 25 July 2005) f. Awards and Decorations: ARCOM-2; AAM-4; AGCM-3; NDSM; ICM-CS; GWOTSM; KDSM; ASR; CAB; MUC g. Performance Ratings: Four NCOERs rendered during period of last reenlistment service on file: October 2005 thru June 2006, Fully Capable 1 July 2006 thru 30 June 2007, Fully Capable 1 July 2007 thru 30 June 2008, Among the Best 1 July 2008 thru 31 October 2008, Among the Best h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 2, dated 16 April 2010, described at the preceding paragraphs 3(1)-(3). Special Court-Martial Order Number 95, dated 22 July 2011, described at the preceding paragraphs 3(4)-(5). i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's documentary evidence: Memorandum, dated 29 September 2009, subject: RCM 706 Sanity Board Evaluation of [the applicant], relates on the applicant's "Axis I" diagnosis as "Post-Traumatic Stress Disorder." Health Records, dated 15 and 21 December 2009, shows the applicant being treated for behavioral health diagnosis of PTSD. Ministry of Health, Psychiatric Re-Assessment Report, dated 4 January 2019, rendered by a Psychiatrist, summarizes information on the applicant's "Post-Traumatic Stress Disorder acquired from battlefield during his military duties" and continued to "manifest" listed symptoms. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Military Record), dated 4 February 2019; DD Form 214; CAB Permanent Orders; memorandum, dated 29 September 2009; memorandum, dated 29 September 2009; Psychiatric Re-Assessment Report, dated 4 January 2019; and Health Records, dated 15 and 21 December 2009. 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 honorable. 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 was unknowingly suffering from PTSD, which led to his misconduct. His contentions were carefully considered. A careful review of the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service- connected post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. 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 receiving more meaningful veterans' benefits and 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 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 4 October 2019, and by a 5-0 vote, the Board denied the request for clemency 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 AR20190004066 3