1. Applicant's Name: a. Application Date: 23 May 2019 b. Date Received: 7 June 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is bad conduct. The applicant requests an upgrade to honorable and a second DD Form 214 for the honorable active service period 8 October 2002 to 27 November 2008. The applicant seeks relief contending, in effect, that he regrets daily his action and behaviors that led to his discharge and it has taken him several years to get his life back on track with his mental/physical health dealing with PTSD. He honorably served his country for many years without any negative marks until he returned from deployment and had many medical/mental/emotional complications that led to his poor choices and eventually his discharge. His discharge was the result of him having problems with PTSD that he was not aware of at the time of discharge. The applicant contends that after he began to receive treatment for the PTSD symptoms, his struggles and addictions, things began to improve for him. He is honored to say that he is currently a different person. He has been clean and sober for over 5 years but he still struggles with the symptoms of PTSD on a daily basis. He has a fulltime job and he owns his own home. He truly believes that if he had known what PTSD was and had received treatment in the beginning, the outcome of his discharge would have been different. The life he was living at that time, was not who he truly was years before and definitely is not the man he is today. The applicant is asking the board to consider his many years of continuous honorable active service, immediate reenlistment and service overseas and during war time as well as the many medals, awards, badges, certificates that he received during his honorable service time. In a records review conducted on 12 January 2022, and by a 4 - 1 vote, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, the Board determined that clemency is warranted based on length, previous period of honorable service, quality of service and post service accomplishments. Accordingly, the Board voted to grant relief by upgrading the applicant's 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 b. Date of Discharge: 14 April 2016 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 19, dated 26 July 2012, on 27 February 2012, the applicant was found guilty of the following: Charge I, in violation of Article 86 of without authority, failing to go at the times prescribed to his appointed places of duty on or about 8 July 2011; Charge II, in violation of Article 85 which he pleaded not guilty, but guilty to violation of Article 86, UCMJ, absent without leave. Finding: not guilty, but guilty of a violation of Article 86, UCMJ absent without leave. Charge III, in violation of Article 92, for violating a lawful general regulation between on or about 27 February 2011 and on or about 7 March 2011, to wit: paragraphs 4-14(b)(3) and 4-14(b)(4), Army Regulation 600-20, dated 18 March 2008, by wrongfully engaging in a relationship with Private First Class D.K., that involved the improper use of rank and position for a personal gain and that was exploitative in nature; Charge IV, in violation of Article 121, were dismissed upon motion by the government before findings; Charge V, in violation of Article 130, were dismissed upon motion by the government before findings; Charge VI, in violation of Article 90, for having received a lawful command form Captain A.S., his superior commissioned officer, to not leave the limits of the Fort Carson Military Installation without written or verbal approval, or words to that effect, did at or near Fort Carson, Colorado, on or about 28 September 2011, willfully disobeyed the same; Additional Charge, in violation of Article 134, for between on or about 1 February 2011 and 1 March 2011, wrongfully receiving a Sony Bravia Television, a Sony PlayStation 3 Game System, a Sony PlayStation Portable Game System, a Son VAIO Laptop Computer, and a Hewlett-Packard Photosmart Plus Printer, of a value of greater than $500, the property of Specialist R.V., which property the applicant knew had been stolen; wrongfully receiving a Dell Laptop Computer, an Apple IPOD, and a Vizio Television, of a value of greater than $500, the property of Private W.P., which property the applicant knew had been stolen; wrongfully receiving a Fuji J40 Digital Camera, Toshiba Laptop Computer, and a Sharp Television, of a value of greater than $500, the property of Private First Class D.R., which property the applicant knew had been stolen; wrongfully receiving a Samsung Television and Microsoft Xbox Game System, of a value of greater than $500, the property of Private D.S., which property the applicant then knew had been stolen; and wrongfully receiving a LG Plasma Television, of a value of greater than $500, the property of Sergeant S.F., which the applicant knew had been stolen. (2) Adjudged Sentence: Reduction to E-1; to be confined for eight months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 26 July 2012/ only so much of the sentence, a reduction E-1, confinement for 8 months, and a bad conduct discharge was approved and, except for that part of the sentence extending to a bad conduct discharge, was ordered to be executed. The applicant was credited with 113 days of confinement against 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. Documents affirming the findings were not in the available record. (5) Date Sentence of BCD Ordered Executed: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 November 2008 / 6 years b. Age at Enlistment / Education / GT Score: 29 / HS Graduate / 120 c. Highest Grade Achieved / MOS / Total Service: E-5 / 91E10, Allied Trade Specialist, 44E10, Metal Worker / 14 years, 2 months d. Prior Service / Characterizations: ARNG, 31 August 1998 to 31 May 1999 / NA OAD, 1 June 1999 to 16 November 1999 / HD ARNG, 17 November 1999 to 5 November 2001 / HD USARCG, 6 November 2001 to 7 October 2002 / NA RA, 8 October 2002 to 25 October 2004 / HD RA, 26 October 2004 to 15 February 2007 / HD RA, 16 February 2007 to 26 November 2008 / HD e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: ARCOM-3, AAM-3, MUC, AGCM-2, NDSM, GWOTSM, KDSM, ASR g. Performance Ratings: 1 March 2010 to 28 February 2011, Marginal h. Disciplinary Action(s) / Evidentiary Record: Present for Duty (PDY) to Absent Without Leave (AWOL), effective 28 September 2011 AWOL to Dropped from the Rolls (DFR), effective 28 October 2011 PDY to Confined by Military Authorities (CMA), effective 27 February 2012 CMA to PDY, effective 24 May 2012 Charge Sheet, dated 28 October 2011, which indicates the applicant was charged with being absent from his unit from 28 September 2011 and remained so absent in desertion until on or about 28 October 2011. i. Lost Time / Mode of Return: Absent without leave for 40 days (28 September 2011 to 6 November 2011) / mode of return unknown; and Confinement by military authority 87 days (27 February 2012 to 24 May 2012) / result of special court-martial punishment. The DD Form 214 under review makes reference to 1,393 days of excess leave from (22 June 2012 to 14 April 2016). j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 29 April 2011, indicates the applicant was diagnosed with and Axis I for Adjustment Disorder with Mixed Anxiety and Depressed Mood. It was noted that on 29 April 2011 the applicant was seen for behavioral health evaluation due to pending chapter separation. The applicant met retention standards IAW AR 40-501. AHLTA records were reviewed and the applicant was screened with the PCL-M and VHA TBI instruments. The applicant did not present a history of PTSD or TBI. The applicant did endorse some symptoms of PTSD however, upon review, it was determined that those symptoms were not of such severity as to significantly interfere with his social-occupational functioning or to meet criteria for formal diagnosis. The applicant denied any thoughts, desires, intentions, or plans to harm himself or anyone else in any way at the time of the interview. No conditions existed which could have caused a significant defect in psychological, social or occupational functioning, reliability or stability which would have precluded him from participating in the administrative proceedings. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and DD Form 149; award recommendations/certificates; certificates of achievements; course completion certificates; documents directed to the Department of Veterans Affairs, dated 27 September 2019 (i.e., self- authored statement, DD Form 149, DD Form 293, statement in support of claim for service connection for Post-Traumatic Stress Disorder, separation documents, report of mental status evaluation, report of medical assessment, honorable discharge certificates, line of duty document, several letters of character, enlisted record brief, and DD Form 214 for a prior period of service and for the period of service under review). 6. POST SERVICE ACCOMPLISHMENTS: None submitted with his application. 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 II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) Chapter 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. 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. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years' active Federal service. Eligibility: Ineligible for enlistment. 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 requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's AMHRR record does not contain the complete facts and circumstances concerning the events which led to his discharge from the Army. The applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 3, Section III, by reason of court-martial, other, with a characterization of service of bad conduct. Further, the DD Form 214 shows a Separation Code of JJD (i.e., court-martial, other, with a reentry eligibility (RE) code of 4. 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 seeks relief contending, in effect, that he regrets his action and behaviors that led to his discharge and it has taken him several years to get his life back on track with his mental/physical health dealing with PTSD. The applicant contends that he honorably served his country for many years without any negative marks until he returned from deployment and had many medical/mental/emotional complications that led to his poor choices and eventually his discharge. The applicant in-service accomplishments were noted and the applicant is to be commended on his accomplishments. Available evidence in the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. The applicant contends that his discharge was the result of him having problems with PTSD that he was not aware of at the time of discharge. The applicant's contentions were noted; evidence in the record (Report of Mental Status Evaluation, dated 29 April 2011), indicates the applicant was diagnosed with and Axis I for Adjustment Disorder with Mixed Anxiety and Depressed Mood. On 29 April 2011, the applicant was seen for behavioral health evaluation due to pending chapter separation. The applicant met retention standards IAW AR 40-501. AHLTA records were reviewed and the applicant was screened with the PCL-M and VHA TBI instruments. The applicant did not present a history of PTSD or TBI. The applicant did endorse some symptoms of PTSD however, upon review, it was determined that those symptoms were not of such severity as to significantly interfere with his social-occupational functioning or to meet criteria for formal diagnosis. The applicant denied any thoughts, desires, intentions, or plans to harm himself or anyone else in any way at the time of the interview. No conditions existed which could have caused a significant defect in psychological, social or occupational functioning, reliability or stability which would have precluded him from participating in the administrative proceedings. The applicant contends that after he began to receive treatment for the PTSD symptoms, his struggles and addictions, things began to improve for him. He is honored to say that he is currently a different person. He has been clean and sober for over 5 years but he still struggles with the symptoms of PTSD on a daily basis. He has a fulltime job and he owns his own home. He truly believes that if he had known what PTSD was and had received treatment in the beginning, the outcome of his discharge would have been different. The life he was living at that time, was not who he truly was years before and definitely is not the man he is today. The applicant is asking the board to consider his many years of continuous honorable active service, immediate reenlistment and service overseas and during war time as well as the many medals, awards, badges, certificates that he received during his honorable service time. The applicant's post-service accomplishments were noted and the applicant is to be commended on his accomplishments. 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? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health record determined that the applicant has an in-service BH diagnosis of Adjustment DO and a 50% service connected VA diagnosis of PTSD. (2) Did the condition exist or experience occur during military service? Yes. Applicant has an in-service BH diagnosis of Adjustment DO and a 50% service connected VA diagnosis of PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. It is the opinion of the Agency BH advisor that the applicant has a diagnosis, PTSD, which mitigates some of his misconduct. As there is an association between PTSD and avoidance behaviors, there is a nexus between his diagnosis of PTSD and his incidents of AWOL and FTR. PTSD, however, does not mitigate having an inappropriate relationship with a subordinate, larceny and violating an order to not leave base. In reviewing these offenses, details surrounding these offenses, the PTSD diagnosis and its status at the time of the misconduct, it is unlikely that his post-service diagnosis of PTSD was contributory. Having a diagnosis of PTSD in no way affects one's ability to distinguish right from wrong and act in the right. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member, that BH diagnoses of PTSD are often associated with avoidance behaviors. As a result, the ADRB applied liberal consideration and found that the cause for separation is partially mitigated by BH condition for the reasons listed in (3) above. The applicant's offenses of inappropriate relationship with a subordinate, larceny and violating an order are not medically mitigated, as there is no nexus between these behaviors and the BH conditions listed. b. Response to Contention(s): (1) The applicant seeks relief contending that he regrets daily his action and behaviors that led to his discharge and it has taken him several years to get his life back on track with his mental/physical health dealing with PTSD. Additionally, the applicant contends unawareness of having problems with PTSD. The Board reviewed the applicant's DOD and VA health record determined that the applicant has an in-service BH diagnosis of Adjustment DO and a 50% service connected VA diagnosis of PTSD. However, the Board applied liberal consideration and found that the cause for separation is partially mitigated. (2) The applicant is asking the board to consider his many years of continuous honorable active service, immediate reenlistment and service overseas and during war time as well as the many medals, awards, badges, certificates that he received during his honorable service time. The Board determined the applicant's discharge was appropriate because the 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 engaging in an inappropriate relationship with a subordinate, larceny and violating an order to not leave base, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. c. The Board determined after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, the Board determined that clemency is warranted based on length and quality of service. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to Under Other Than Honorable Conditions. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Under Other Than Honorable because the applicant had a BH condition of PTSD which partially mitigated the applicant's misconduct of avoidance behaviors, AWOL and FTR. Thus the prior characterization is no longer appropriate. (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 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 AR20190008669 1