1. Applicant's Name: a. Application Date: 22 February 2019 b. Date Received: 4 March 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is Bad Conduct Discharge. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, his discharge was inequitable because his mental health condition at the time of his misconduct or subsequent separation was not take into account. In a records review conducted on 19 May 2021, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board's decision (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: 11 March 2005 c. Separation Facts: No (1) Date of Notification of Intent to Separate: NA (2) Basis for Separation: NIF The record of trial was forwarded to The US Army Court of Criminal Appeals for review; The US Army Court of Criminal Appeals affirming the approved findings of guilty and the sentence, are not contained in the available record; and government regularity in the judicial process is presumed. On 16 October 2003, the sentence was finally affirmed and Article 71(c) having been complied with, the bad-conduct discharge was ordered to be executed. (3) Recommended Characterization: NA (4) Legal Consultation Date: NA (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 11 March 2005 / Bad-Conduct 4. SERVICE DETAILS: a. Period of Enlistment: 29 September 1999 / 4 years b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 114 c. Highest Grade Achieved / MOS / Total Service: E-3 / 74C1P, Telecommunication Operator / Maintainer / 4 years, 5 months, 27 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: AWOL x2 for 271 days, 5 September 2001 to 18 September 2001 for 14 days and 21 September 2001 to 4 June 2004; mode of return unknown. Military Confinement for 75 days. Total lost time 346 days. The applicant also had 844 days of excess leave, 19 November 2002 to 11 March 2005. j. Diagnosed PTSD / TBI / Behavioral Health: A Medical Document, Dr. M.D.B., dated 10 February 2019, revealed that Dr. B. states the applicant had a Bipolar Disorder. He was prescribed medication for this condition. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); DD Form 214; Support Statement COL (Ret, two pages); and a Medical Document, Dr. M.D.B. (two pages) 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides 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), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides 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, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification 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. (2) 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. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Chapter 3, Section III establishes policy and procedures for separating members with a dishonorable or bad-conduct discharge; and provides a Soldier will be given a bad- conduct discharge pursuant only to an approved sentence of a general or special court-martial; and the appellate review must be completed and the affirmed sentence ordered duly executed. Paragraph 3-7b states a General discharge is a separation from the Army under honorable (3) 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. (4) 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. e. 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." 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the judicial process). The applicant's AMHRR contains a Notice of Court-Martial Order Correction, dated 20 May 2003. This document reflects that Charge I on the applicant's Court Martial Order was corrected "to reflect that Charge I was an offense of Article 85." The Manual for Courts Martial, 1984 Edition, which was the Manual for Courts Martial in effect at the time of the applicant's Court Martial, indicates that Article 85 is desertion. The applicant seeks relief contending, his discharge was inequitable because his mental health condition at the time of his misconduct or subsequent separation was not take into account. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? YES. Applicant has been diagnosed with Bipolar Disorder by a civilian physician, Dr. B. Dr. B hypothesizes that the applicant likely suffered from Bipolar Disorder while on active duty. Bipolar Disorder is potentially a mitigating diagnosis. The ADRB, in conjunction with the Board's Medical Advisor, a voting member of the board, accepted that the applicant's Bipolar Disorder is a potentially mitigating condition. (2) Did the condition exist or experience occur during military service? YES. A civilian physician, Dr. B, diagnosed the applicant with Bipolar Disorder in Feb 2019 and surmised that the applicant suffered from this condition while on active duty. Despite the fact that no medical records covering the applicant's period of service (1999 to 2005) were available or provided, the ADRB accepted that the applicant held this condition while in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant's separation packet is incomplete within the AMHRR. The ADRB knows that the applicant was charged with desertion, based on the Notice of Court-Martial Order Correction in the file. The Board decided that, based on the evidence of record, there were likely other charges in addition to desertion. Given that the additional misconduct leading to the applicant's Bad Conduct Discharge is not known, and despite applying liberal consideration, the Board determined a preponderance of evidence did not support a finding that the Bipolar disorder mitigated the misconduct that resulted in the Bad Conduct Discharge. (4) Does the condition or experience outweigh the discharge? No. Because the ADRB is unaware of the complete misconduct with which the applicant was charged and convicted, the Board was unable to determine whether or not his condition outweighs the discharge. b. The applicant contends that the state of his mental health caused the basis for discharge. Because the complete basis of separation is not present in the AMHRR, the ADRB found insufficient evidence to determine if the applicant had a BH diagnosis that is mitigating for or outweighed the misconduct which led to separation from the Army. In summary, the separation was proper and equitable. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because the complete basis of separation is not in the AMHRR and the Board found insufficient evidence to determine if the applicant's Bipolar Disorder is mitigating for or outweighed the misconduct which led to separation from the Army. (2) The board voted to not change the reason 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. (3) Because the characterization and reason were not changed, the SPD/RE codes will not change. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / 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 AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190004427 1