1. Applicant's Name: a. Application Date: 30 March 2019 b. Date Received: 4 April 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 honorable or general (under honorable conditions) and a narrative reason change. The applicant contends that he should have been punished, but not discharged with a bad conduct characterization of service. The applicant contends that he was young at the time of the discharge. In a telephonic personal appearance hearing conducted on 3 May 2021, and by a 3-2 vote, the Board determined that the characterization of service was inequitable and clemency is warranted based on the applicant's length of service to include combat service, the circumstances surrounding the discharge (diagnoses of PTSD), prior period of honorable service, and post-service accomplishments. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Under Other Than Honorable Conditions. Please see Section 10 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: 20 July 2010 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 3, dated 16 June 2009, on 25 March 2009, the applicant was found guilty of the following: Charge I: Article 121. The Specification: Did, at or near Fort Wainwright, Alaska, between on or about 1 April 2008 and on or about 30 May 2008, steal 10 Surefire Scout Lights and 5 Surefire Tac Lights, military property, of a value of $3,388.80, property of the United States Army. Plea: Guilty. Finding: Guilty. Charge II: Article 108. The Specification: Did, at or near Fort Wainwright, Alaska, between on or about 1 April 2008 and on or about 30 May 2008, without proper authority sell on EBay to several unnamed individuals, 10 Surefire Scout Lights and 5 Surefire Tac Lights, of a value of $3,388.80, military property of the United States Army: Guilty, Finding: Guilty. (2) Adjudged Sentence: Reduction to E-1; to be confined for 179 days, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 16 June 2009 / only so much of the sentence, a reduction E-1, confinement for five 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: 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: 8 April 2010 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 July 2006 / 6 years b. Age at Enlistment / Education / GT Score: 25 / HS Graduate / 121 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B10, Infantryman / 10 years, 8 months, 2 days d. Prior Service / Characterizations: RA, 21 July 1999 - 18 August 2001 / HD RA, 19 August 2001 - 14 November 2002 / HD RA, 15 November 2002 - 3 July 2006 / HD e. Overseas Service / Combat Service: Alaska, SWA / Afghanistan (9 January 2002 - 15 July 2002); Iraq (28 March 2003 - 21 July 2003; 16 August 2005 - 1 December 2006) f. Awards and Decorations: ARCOM-3, AAM, VUA, NDSM, ACM-2CS, GWOTSM, ICM- 2CS, NCOPDR, ASR, OSR-3 g. Performance Ratings: 1 July 2006 - 28 February 2007 / Among The Best 1 March 2007 - 29 February 2008 / Fully Capable 24 June 2008 - 14 March 2009 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)" effective 25 March 2009; and, From "CMA" to "PDY," effective 23 July 2009. i. Lost Time / Mode of Return: 120 days: (CMA, 25 March 2009 - 23 July 2009) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his VA disability rating decision, dated 4 August 2020, which reflects the applicant was rated 70 percent disability for PTSD (also claimed as depression, anxiety and memory loss) 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; VA Form 21-4138; VA Rating Decision; self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided evidence that he has obtained employment and is active in his church, schools and community. 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 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.. (2) 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) 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. 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 contends that he should have been punished, but not discharged with a bad conduct characterization of service. 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 he was young at the time of the discharge. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): The applicant provided evidence the VA has granted him a service connected disability for PTSD. b. The applicant presented the following additional contention(s): Applicant provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence. c. Counsel / Witness(es) / Observer(s): N/A 10. 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) The Board's Medical Advisor reviewed all available medical records and found that the VA has service-connected the applicant for PTSD. Under Liberal Consideration, PTSD is a potentially mitigating BH diagnosis. (2) Did the condition exist or experience occur during military service? (YES) The VA has established that the applicant's diagnosis of PTSD developed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? (NO) Despite applying liberal consideration, the ADRB found that the applicant's diagnosis of PTSD does not mitigate his misconduct. Specifically, PTSD might cause an individual to make sudden, impulsive decisions, but not decisions of this kind, involving the foresight and deliberate planning required to steal equipment and then posting it and selling it on eBay. (4) Does the condition or experience outweigh the discharge? (NO) Despite applying liberal consideration, the Board determined that the applicant's larceny and sale of stolen government equipment that resulted in court-martial and the punitive discharge is not outweighed by the diagnosed PTSD. This is because PTSD is associated with impulsive, sudden decisions, not the long-term planning and foresight that stealing and selling equipment on eBay would have required. The applicant's conduct demonstrates that he intentionally stole several thousand dollars of equipment, posted these items on eBay and sold them. b. The applicant contends he was young and punished too harshly. While the procedures seem to have protected the applicant during all phases of the discharge process, the Board considered this contention in their acknowledgement of a possible question of equity, and determined that a partial upgrade was appropriate. c. The Board voted to upgrade the applicant due to clemency, based on time passed and post-service accomplishments. However, a full upgrade was not approved as the larceny outweighed and was not mitigated by the PTSD diagnosis, and there were no other mitigating factors for the Board to consider. The Board determined that the multi-thousand dollar larceny for which the applicant was court-martialed and discharged rendered his service unsatisfactory and a discharge characterization higher than Under Other Than Honorable Conditions was not warranted. d. Rationale for Decision: (1) The board voted to change the applicant's characterization of service due to an issue of equity and clemency is warranted based on the applicant's length of service to include combat service, the circumstances surrounding the discharge (diagnosis of PTSD), prior period of honorable service, and post-service accomplishments. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Under Other Than Honorable Conditions. (2) The board cannot change the reasons because of a Court Martial sentence, therefore the board is only 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. (3) Because the reason was not changed, the SPD and RE codes will not change. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Under Other Than Honorable Conditions c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority 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 @#!CASENUMBER 6