1. Applicant's Name: a. Application Date: 19 March 2019 b. Date Received: 29 March 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant through legal counsel requests an upgrade of his bad conduct discharge to honorable, a change of his narrative reason for separation, and an upgrade of his reentry eligibility (RE) code to RE-1. The applicant seeks relief contending, in effect, that his discharge should be upgrade through the mercy of the board. The applicant contends that after the numerous instances of physical and mental trauma he received during his time at Fort Benning, Georgia, the applicant developed severe mental health issues which led to detrimental effects. To cope, the applicant began heavily drinking, using illegal drugs, and even attempting suicide twice before receiving help at the PVAMC. Due to his discharge status, he was unable to continue his treatment to an outpatient stage because of the lack of funding. The applicant is unable to afford the healthcare he needs by his own means given his inability to work due to his substance abuse and psychiatric conditions. In light of the facts and circumstances provided herein, the applicant requests that his discharge to corrected to reflect an honorable characterization of service through the reason of clemency. The applicant believes he demonstrates a suffering from mental health issues and substance abuse linked to his time in basic training, by which he used substances to cope. Through his coping process, the applicant has done more harm than good to himself. Without a current proper avenue for treat, he cannot receive the proper psychological and substance abuse treatment he so desperately needs. 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 diagnoses. The applicant is not service-connected from the VA. The VA has also diagnosed the applicant with Sedative/Hypnotic or Anxiolytic Dependence; Cocaine Dependence; Opioid Dependence; Other specified persistent mood disorders; Other mixed anxiety disorders; Possible personality change due to TBI; Polysubstance Abuse; Depressive Disorder NOS; rule out Borderline Personality Disorder. In summary, the applicant does not have 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 11 September 2020, and by a 5-0 vote, the Board denied the request 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, SEC IV / JJD / RE-4 / Bad Conduct b. Date of Discharge: 25 July 2007 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 86: Being absent from his place of duty from 23 July 2004 until he was apprehended on 26 July 2004; Being absent from his unit from 30 July 2004 until his return on 8 August 2004; and Being absent from his unit from 17 August 2004 until his return on 26 August 2004; and Being absent from his unit from 23 September 2004 until his return on 12 October 2004; Charge II, in violation of Article 111: For being in actual physical control of a vehicle on 21 July 2004 and 26 July 2004, to wit: a passenger car, while the alcohol concentration on his breath was .10 grams or more of alcohol per 210 liters of breath as shown by chemical analysis; and Charge III, in violation of Article 90: For disobeying a lawful command from a commissioned officer not to drive a privately owned vehicle on Fort Drum, New York, or word to that effect, on or about 26 July 2004, Charge IV, in violation of Article 92: For violating a lawful general regulation, to wit: Paragraph 1-34b, Army Regulation 600- 85, Army Substance Abuse Program (ASAP), dated 1 October 2001, by wrongfully having a blood alcohol level equal to or greater than .05 grams of alcohol per 100 milliliters of blood while on duty on 12 August 2004; and Charge V, in violation of Article 134: For having been restricted to the limits of Fort Drum, New York, on divers occasions between on or about 23 July 2004 and on or about 17 August 2004, broke said restriction. (2) Adjudged Sentence: On 3 December 2004, the applicant was sentenced to be discharged from the service with a bad conduct discharge (3) Date/Sentence Approved: On 4 May 2005, the sentence was approved, and except for the part of the sentence extending to a bad-conduct discharge was executed. The military judge credited 191 days of pretrial confinement. (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. The military judge credited 191 days of pretrial confinement. Article 71(c) having been complied with, the bad-conduct discharge was ordered to be executed (5) Date Sentence of BCD Ordered Executed: 22 February 2007 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 March 2004 / 3 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-1 / 11B10, Infantryman / 3 years, 1 months, 21 days (The applicant was retained in service 51 days for the convenience of the government per AR 635-200. d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial, dated 3 December 2004, for going AWOL 23 July 2004 to 26 July 2004, 30 July 2004 to 8 August 2004, 17 August 2004 to 26 August 2004, and 23 September 2004 to 12 October 2004), DWI 21 July 2004 and 26 July 2004, disobeying a lawful command from a superior commissioned officer 26 July 2004, and breaking restriction 17 August 2004. The punishment consisted of being discharged from the Army with a Bad Conduct Discharge. Special Court-Martial Orders as described in previous paragraph 3c(2) i. Lost Time / Mode of Return: AWOL for a total of 94 days; 3 days (23 July 2004 to 25 July 2004), apprehended; 9 days (30 July 2004 to 7 August 2004), mode of return unknown; 9 days (17 August 2004 to 25 August 2004) / mode of return unknown; and 19 days (23 September 2004 to 11 October 2004), apprehended; and confinement military authority 54 days (13 October 2004 to 5 December 2004). The DD Form 214 under review makes reference to 962 days of excess leave (6 December 2004 to 25 July 2004). j. Diagnosed PTSD / TBI / Behavioral Health: NIF; however, documents submitted by the applicant make reference to Axis I for polysubstance abuse and depression NOS. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; documents from his OMPF; personal statement; Special Court-Martial Order, Number 15; and PVAMC Medical Records part 1-3. 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 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 "JDD" 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 through legal counsel requests an upgrade of his bad conduct discharge to honorable, a change of his narrative reason for separation, and an upgrade of his reentry eligibility (RE) code to RE-1. 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 evidence of record shows 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 his discharge should be upgrade through the mercy of the board. The applicant contends that after the numerous instances of physical and mental trauma he received during his time at Fort Benning, Georgia, the applicant developed severe mental health issues which led to detrimental effects. To cope, the applicant began heavily drinking, using illegal drugs, and even attempting suicide twice before receiving help at the PVAMC. Due to his discharge status, he was unable to continue his treatment to an outpatient stage because of the lack of funding. The applicant is unable to afford the healthcare he needs by his own means given his inability to work due to his substance abuse and psychiatric conditions. In light of the facts and circumstances provided herein, the applicant requests that his discharge to corrected to reflect an honorable characterization of service through the reason of clemency. The applicant believes he demonstrates a suffering from mental health issues and substance abuse linked to his time in basic training, by which he used substances to cope. Through his coping process, the applicant has done more harm than good to himself. Without a current proper avenue for treat, he cannot receive the proper psychological and substance abuse treatment he so desperately needs. The independent medical documents submitted by the applicant are noted; however, the service record does not support the applicant's contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication at the time of discharge. 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 11 September 2020, and by a 5-0 vote, the Board denied the request 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 AR20190004933 1