1. Applicant's Name: a. Application Date: 16 April 2019 b. Date Received: 29 April 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. The Board would consider the applicant for a possible upgrade as instructed by Department of Defense Instruction (DoDI) 1332.28. The applicant requests an upgrade of a bad-conduct discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, when the applicant deployed to Iraq, the applicant began having anxiety issues. The applicant sought medications that were not prescribed to the applicant from the local Nationals. The applicant was caught with the illicit drugs and was subjected to a court-martial. While awaiting court-martial, the applicant was seen by a mental health provider in Iraq. The applicant pleaded "guilty to possession of CDS in a war zone." After conviction, the applicant went to Kuwait for confinement, where the applicant saw another mental health provider, who diagnosed and medicated the applicant for PTSD. The applicant contends that the Army failed the applicant by not referring the applicant to a medical board. The applicant had served eight months in Iraq before the incident with the drug possession. The applicant completed basic training and AIT, and training at Fort Hood for three months with no infractions. The mission as a 21B, Combat Engineer, in Iraq, was to make sure that the MSRs were cleared for the roadside convoys. The MOS led to the diagnosis for the PTSD as the stressor. The applicant should not have received a BCD, but instead a medical board since the mental health condition is what led to the applicant to seeking self-medication. 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 does not currently have a service-connected rating from the VA. The VA has diagnosed the applicant with Major Depressive Disorder, Generalized Anxiety Disorder, PTSD, Paranoid Schizophrenia, Stimulant Dependence, Stimulant Use Psychosis, Stimulant Use Mood Disorder, Alcohol Dependence, Alcohol Use Disorder, and Meth Abuse. In summary, the applicant's BH diagnoses are partially mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 8 April 2020, 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: 6 July 2007 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 12, dated 22 August 2005, the applicant was found guilty of the following charges: Charge I: Two Specifications of violating Article 92, UCMJ, for failing to obey a lawful general order on two separate occasions on 17 December 2004, and 7 January 2005 by wrongfully consuming alcoholic beverages. Charge II: Three Specifications of violating Article 112a, UCMJ, by wrongfully possessing valium on two separate occasions on 17 January 2005, and 1 December 2004; and wrongfully possessing marijuana in the form of hashish on 1 December 2004. Charge III: Violation of Article 121, UCMJ, for stealing military property of a value of more than $500 on 17 December 2004. (2) Adjudged Sentence and Date: To be reduced to the grade of PVT E-1, forfeiture of $750 pay per month for nine months, confinement for nine months, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 26 March 2005. (3) Date Sentence Approved: On 22 August 2005, only so much of the sentence providing for a reduction to the grade of PVT E-1, forfeiture of $750 pay per month for four months, confinement for four months, and to be discharged from the service with a bad-conduct discharge was approved; however, that part of 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 30, dated 20 February 2007, the promulgated findings and sentence of Special Court-Martial Order No. 12, dated 22 August 2005, as corrected by US Army Court of Criminal Appeals Notice of Court- Martial Order Correction, dated 11 May 2006, had finally been affirmed and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 20 February 2007 4. SERVICE DETAILS: a. Date / Period of Enlistment: O/A 21 May 2004 / MOB in support of OIF, not to exceed 545 days (Note the DD Form 214 stating "Date Entered AD this Period" as 11 January 2004, is incorrect.) b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 117 c. Highest Grade Achieved / MOS / Total Service: E-4 / 21B10, Combat Engineer / 4 years, 11 days (includes 713 days of involuntary excess leave from 24 July 2005 to 6 July 2007, creditable for all purposes, except pay and allowances) d. Prior Service / Characterizations: ARNG (26 June 2003 to 10 January 2004) / NA IADT (11 January 2004 to 30 April 2004) / HD ARNG (1 May 2004 to Continuous Service) e. Overseas Service / Combat Service: SWA / Iraq (2004-2005 (specific dates NIF)) f. Awards and Decorations: ASR; AFRM-M DEV g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Result of Trial reports that the Special Court-Martial that convened on 26 March 2005, at Camp Al-Tahreer, Iraq, found the applicant guilty of two specifications of violating Article 92, UCMJ; four specifications of violating Article 112a, UCMJ; and violating Article 121, UCMJ. The sentence adjudged was a reduction to E-1, forfeiture of $750 pay per month for nine months, confinement for nine months, and to be discharged from the service with a bad- conduct discharge. It further reported that according to a pretrial agreement, the GCMCA agreed to disapprove any confinement in excess of four months, and that the applicant had a credit of having served 25 days pf confinement. Special Court-Martial Order Number 12, dated 22 August 2005, described at the preceding paragraphs 3(1)-(3). Special Court-Martial Order Number 30, dated 20 February 2007, described at the preceding paragraphs 3(4)-(5). i. Lost Time / Mode of Return: 76 days (Military Confinement on 26 March 2005 to 9 June 2005) / The applicant was released upon completing his sentence of confinement. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge) and DD Form 149 (Application for Correction of Military Record), dated 16 April 2019; Wikipedia article on Iraq War, 2004-05; and Military Law Task Force article on Military Psychiatric Policies and Discharges - An introduction for Attorneys and Counselors. 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 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 DoDI 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. Accordingly, 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 suffering from anxiety issues and subsequently being diagnoses with PTSD, which led to his misconduct by self-medicating. His contentions were carefully considered. However, a careful review of the applicant's record does not provide any behavioral health diagnoses and the applicant did not provide any documentary evidence of any behavioral health diagnoses by a competent medical authority. However, based on any medical record available to the Board, and if the Board determines based on the applicant's behavioral health diagnoses available that the behavioral issues were significant contributing factors to his misconduct, it can grant appropriate clemency by changing the characterization of service. If the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., any behavioral health diagnoses) for the Board's consideration because they are not available in the official record. Based on the available record, 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 and appellate review due processes. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 8 April 2020, 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 AR20190007426 4