1. Applicant's Name: a. Application Date: 12 February 2019 b. Date Received: 11 March 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant seeks relief contending, in effect, was dealing with mental issues as a kid, which the mother had the applicant hospitalized under psychiatric care. The applicant was diagnosed with a series of diseases such as ADHD, Bipolar and schizophrenic disorder. The applicant states, by the time the applicant had grown up, the applicant had stop taking medications and began having problems as an adolescent and signed up for the Army. The applicant could not cope without the medications, which made the applicant make bad decisions. The applicant does not make excuses for the actions and wanted to be a part of the platoon, which the applicant never meant to abandon, but the applicant was going through a history of drug problems and psychiatrist care, since a child. During service, the applicant was on various medications, which made it hard to cope and made the applicant think people were always talking about the applicant or out to get the applicant. As an adult, the applicant continued to suffer with these beliefs and now believes it was unjust to deny medical help. The applicant had informed the command about dealing with personal issues as reflected in the medical records, but was given no help. The applicant requests the Board consider the medical benefits when reviewing the application, as the applicant needs help and support. The applicant does not want to become like many veterans who are homeless and without medical help. 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 that due to the period of service, the applicant's records are unavailable for review. The applicant does not have any VA records available for review. In summary, there is insufficient evidence to determine if the applicant had 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 4 March 2020, and by a 5-0 vote, the Board determined that clemency is warranted based on board judgement. 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: 27 January 2006 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 27, dated 20 October 2004, the applicant was found guilty of the following: Charge: in violation of Article 85, UCMJ: Not Guilty, but Guilty of the lesser-included offense of absent without leave in violation of Article 86, Uniform Code of Military Justice. Finding: Not Guilty, but Guilty of a violation of Article 86, UCMJ. Specification 1: Did, on or about 26 August 2003, without authority and with intent to remain away therefrom permanently, absent himself from his unit, and did remain so absent in desertion until he was apprehended on or about 5 January 2004. Plea: Not Guilty, but Guilty of the revised specification as follows, Specification 1: The applicant did, on or about 26 August 2003, without authority, absent himself from his unit, and did remain so absent until he was apprehended on or about 5 January 2004. Finding: Guilty, except the words "with the intent to remain away therefrom permanently." To the excepted words: Not Guilty, but Guilty of the lesser-included offense of absence without authority terminated by apprehension. Specification 2: Did, on or about 9 January 2004, without authority and with intent to remain away therefrom permanently, absent himself from his unit, and did remain so absent in desertion until he was apprehended on or about 28 April 2004. Plea: Not Guilty, but Guilty of the revised specification as follows, Specification 2: The applicant did, on or about 9 January 2004, without authority absent himself from his unit, and did remain so absent until he was apprehended on or about 28 April 2004. [Revised plea amended by defense counsel as follows: Did, on or about 11 January 2004, without authority, absent himself from his unit, and did remain so absent until he was apprehended on or about 28 April 2004]. Finding: Guilty, except the figure "9", substituting therefor the figure "11" and except the words "and with the intent to remain away therefrom permanently." To the excepted words: Not Guilty, but Guilty of the lesser-included offense of absence without authority terminated by apprehension. [Amended by Military Judge to read: Guilty, except to the figure "9", substituting therefor the figure "11", and except the words "and with the intent to remain away therefrom permanently." Of the excepted words and figure: Not Guilty. Of the substituted figure: Guilty.] (2) Adjudged Sentence: to be confined for 7 months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 17 June 2004 / only so much of the sentence, of confinement for 7 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. The applicant was credited with 55 days of confinement towards the sentence to confinement. (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 9 December 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 August 2002 / 3 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-1 / 13B10, Cannon Crewmember / 2 years, 4 months, 4 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Seven Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Failure to Report," effective 25 August 2003; From "Failure to Report" to "Absent Without Leave (AWOL)," effective 26 August 2003; From "AWOL" to "Dropped From Rolls (DFR)," effective 26 September 2003; From "PDY" to "AWOL," effective 9 January 2004; From "AWOL" to "DFR," effective 10 February 2004; From "PDY" to "Confined by Military Authorities (CMA)" effective 23 April 2004; and, From "CMA" to "PDY," effective 15 October 2004. i. Lost Time / Mode of Return: 1 year, 1 month, 16 days: AWOL, 26 August 2003 - 31 December 2003 / Apprehended by Civil Authorities AWOL, 11 January 2004 - 22 April 2004 / Apprehended by Military Authorities CMA, 23 April 2004 -14 October 2004 / Released From Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; VA Letter. 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 honorable. 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 contends he was diagnosed with several mental disorders. However, the service record contains no evidence of a mental disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant contends he informed his command he was suffering from personal issues as reflected in his medical records, but he received no helps. However, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. The applicant contends that an upgrade of his discharge would allow veterans benefits through the use of medical care. However, eligibility for veteran's benefits to include medical care, 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 March 2020, and by a 5-0 vote, the Board determined that clemency is warranted based on board judgement. 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 AR20190005253 1