1. Applicant's Name: a. Application Date: 13 May 2019 b. Date Received: 20 May 2019 c. Previous Records Review: 16 June 2017, AR20150018261 (Reconsideration based on documentary evidence of PTSD diagnosis) d. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of a bad-conduct discharge to general (under honorable conditions) or honorable. The applicant seeks relief contending, in pertinent part and in effect, served over 20 years of active honorable service and two combat campaigns. 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 Anxiety Disorder. The applicant is 30% service-connected for PTSD from the VA. In summary, the applicant's BH diagnoses are not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 29 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: 7 November 2013 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 2, dated 17 August 2011, the applicant was found guilty of the following charges: Charge I: Violation of Article 93, UCMJ, for maltreating PV2 X., while subject to his orders, on 18 October 2010. Charge II: Five Specifications of violating Article 120, UCMJ: three Specifications of engaging in sexual contact with 1LT X. between 10 August 2010 and 1 September 2010; one Specification of intentionally exposing in an indecent manner his penis to 1LT X between 1 September 2010 and 19 September 2010; and on Specification of intentionally exposing in an indecent manner his penis to 2LT X. on 12 December 2010. Charge III: Violation of Article 128, UCMJ, for assaulting 1LT X. between 10 August 2010 and 1 September 2010. Additional Charge: Violation of Article 93, UCMJ, for maltreating SPC X., while subject to his orders, between 1 August 2009 and 31 August 2009. (2) Adjudged Sentence and Date: To be reduced to the grade of PVT E-1, confinement for 12 months, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 22 February 2011. (3) Date Sentence Approved: On 17 August 2011, the sentence was approved, and except for part of the sentence extending to a Bad Conduct Discharge, would be executed. (4) Appellate Reviews: NIF; however, the unavailable subsequent Special Court- Martial Order would have announced an affirmation findings and sentence, and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 July 2000 / Indefinite b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 115 Note: acquired Bachelor's Degree in 2004) c. Highest Grade Achieved / MOS / Total Service: E-8 / 68W1P, Health Care Specialist / 28 years, 7 months, 14 days d. Prior Service / Characterizations: ARNG (22 May 1984 to 13 June 1985) / NA IADT (14 June 1985 to 17 June 1985) / UNC ARNG (18 June 1985 to 21 May 1990) / HD USAR (22 May 1990 to 6 September 1990) / NA RA (7 September 1990 to 24 September 1995) / HD RA (25 September 1995 to 26 July 2000) / HD e. Overseas Service / Combat Service: Germany, Korea, SWA / Iraq (28 April 2006 to 12 November 2006), (10 August 2010 to 21 February 2011) f. Awards and Decorations: MSM-2; ARCOM-4; AAM-4; AGCM-6; NDSM-2; ICM-2CS; GWOTSM; KDSM; HSM; NCOPDR-3; ASR; OSR-4; EFMB g. Performance Ratings: 15 NCOERs rendered during period of service under current review as Among the Best (AB) or Fully Capable (FC), and one Marginal: December 1999 thru September 2000, AB October 2000 thru September 2001, AB October 2001 thru September 2002, AB October 2002 thru May 2003, AB June 2003 thru December 2003, AB January 2004 thru May 2004, AB June 2004 thru May 2005, AB June 2005 thru February 2006, AB 1 March 2006 thru 31 October 2006, FC 1 November 2006 thru 31 October 2007, AB 1 November 2007 thru 1 May 2008, AB 2 May 2008 thru 30 January 2009, AB 31 January 2009 thru 5 June 2009, AB 6 June 2009 thru 5 March 2010, AB 6 March 2010 thru 22 February 2011, Marginal h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 2, dated 17 August 2011, described at the preceding paragraphs 3(1)-(3). i. Lost Time / Mode of Return: 291 days (Military Confinement on 22 February 2011 to 9 December 2011) / The applicant released upon completing his court-martial confinement sentence. j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: Initial Post-Traumatic Stress Disorder (PTSD) - DSM V Disability Benefits Questionnaire, dated 15 April 2016, rendered by a Psychologist, indicates the applicant was diagnosed with PTSD that conforms to DSM-5 criteria and alcohol use disorder. It states that all symptoms attributable to his PTSD and his alcohol use in an effort to self-medicate, and that there is 100 percent association between his PTSD symptomology and his alcohol use. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 13 May 2019; three character reference statements; Initial Post-Traumatic Stress Disorder (PTSD) - DSM V Disability Benefits Questionnaire, dated 15 April 2016; 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 requests an upgrade of his bad-conduct discharge to general (under honorable conditions) or 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. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his accomplishments and complete period of service were or were not sufficiently mitigating to warrant clemency by upgrading his characterization of service. The applicant's documentary evidence showing the applicant's PTSD diagnosis, was carefully considered. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate clemency by changing the characterization of service. The third party statements provided with the application speak highly of the applicant's character and performance. However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. 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 29 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 AR20190007601 1