1. Applicant's Name: a. Application Date: 22 April 2019 b. Date Received: 17 May 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 general (under honorable conditions) or under other than honorable conditions and a reenlistment eligibility (RE) code change. The applicant seeks relief contending, in effect, his discharge was inequitable due to the charges against him. He was given the opportunity to justify the charges and he corrected his actions in a timely manner. If errors had not been made, he would have received a different discharge status. He should have never been evaluated for being homosexual. He was asked numerous time if he was homosexual and that was breaking the "Don't ask, Don't Tell" policy. The applicant states he would like to return to service. He has become a person with morals which were molded while he was in the military. In a records review conducted on 27 August 2021, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, post-service accomplishments, and prior period of honorable service, and partial clemency was warranted. 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 9 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 Discharge a. Date of Discharge: 11 July 2008 b. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order (SCMO) Number 40, dated 28 June 2007, the applicant was found guilty of quitting his unit on or about 6 June 2006, with intent to avoid hazardous duty, and remained so absent in desertion until he was apprehended on or about 30 November 2006 and stealing $760.00, the property of Wells Fargo from on or about 1 March 2006 until on or about 31 March 2006. (2) Adjudged Sentence: 9 March 2007; To be reduced to the grade of E-1, to be confined for 7 months and to be discharged from the service with a Bad Conduct Discharge. (3) Date/Sentence Approved: 28 June 2007, except for that part of the sentence extending to a bad conduct discharge, would be executed. The applicant was credited with 92 days of confinement against the sentence to confinement. (4) Appellate Reviews: The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence on 30 August 2007. (5) Date Sentence of BCD Ordered Executed: 17 January 2008 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 July 2005 / 4 years b. Age at Enlistment / Education / GT Score: 18 / NIF / NIF c. Highest Grade Achieved / MOS /Total Service: E-4 / 19K, M1 Armor Crewman / 4 years, 10 months, 11 days d. Prior Service / Characterizations: RA, 11 September 2002 - 21 July 2005 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq, 10 January 2005 - 29 December 2005 f. Awards and Decorations: ICM, ARCOM, NDSM, GWOTSM, KDSM, ASR, OSR-2 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: SPCMO as described in paragraph 3c. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined Military Authorities," effective 6 December 2006 and From "Confined Military Authorities," to "PDY" effective 2 June 2007 i. Lost Time / Mode of Return: AWOL X 176 days, 6 June 2006 to 29 November 2006 / Apprehended; Confinement X 177 days, 6 December 2006 - 1 June 2007 j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, 2 Letters of Support 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he would like to return to service. He has become a person with morals which were molded while he was in the military. 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 AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to general, under honorable conditions or under other than honorable conditions and a RE code change. 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 his discharge was inequitable due to charges against him and errors were made which could have afforded him a different discharge status. 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 also contends he should have never been evaluated for being homosexual. He was asked numerous time if he was homosexual and that was breaking the "Don't ask, Don't Tell" policy. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the command violated the Don't ask Don't Tell policy. The applicant requests his RE code be changed. The applicant was separated under the provisions AR 635-200, Chapter 3, 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 635-5-1, 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. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. The regulation further stipulates that no deviation is authorized. The applicant expressed a desire to rejoin the Military Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived and the applicant is no longer eligible for reenlistment 9. 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? No. The Board's Medical Advisor reviewed all available medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony that, when applying liberal consideration, convinced the Board of a possible mitigating BH condition. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant seeks relief contending, in effect, his discharge was inequitable due to the charges against him. The Board determined that this contention was valid, and the discharge was too harsh. (2) He should have never been evaluated for being homosexual. He was asked numerous times if he was homosexual and that was breaking the "Don't ask, Don't Tell" policy. There is no mention of DADT in discharge, applicant was discharge for desertion. The applicant did not provide any independent corroborating evidence to support this contention for the Board's consideration. (3) The applicant states he would like to return to service. The applicant did not provide any evidence or testimony for the Board's consideration. The applicant has an RE-4, which disqualifies the applicant from future service. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. (4) He has become a person with morals which were molded while he was in the military. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. c. The Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, post-service accomplishments, and prior period of honorable service, and partial clemency was warranted. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Under Other Than Honorable Conditions because the discharge was too harsh for a desertion separation. Thus the prior characterization is no longer appropriate. The record confirms quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By deserting, the applicant diminished the quality of service that may merit a General or higher discharge at the time of separation. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. 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 N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry 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 AR20190007731 1