1. Applicant's Name: a. Application Date: 24 June 2019 b. Date Received: 28 June 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the bad conduct discharge to honorable. The applicant seeks relief contending, in effect, that the applicant has been diagnosed with PTSD and continues to get treatment. The applicant deployed to Iraq in 2008 and DD form 214 shows continuous honorable active service from 19 March 2008 to 21 November 2008. The applicant suffered injuries when the base at Tallil Air Base in Iraq was struck by a motor round. The applicant was knocked unconscious and many people were injured and killed during the attack. This stressed the applicant the entire deployment. This is when the PTSD symptoms began. The applicant went home to be with his wife (now ex-wife) who was pregnant with their second child and was on bed rest. The applicant did not want to leave her as the doctor said it was serious. The PTSD and stress over possibly losing the child caused the applicant to not think correctly and was given a court martial and a Bad Conduct discharge after deployment. 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 Depression; Nightmare Disorder; Partial Complex Seizure Disorder. The VA has also diagnosed the applicant with PTSD; TBI; Major Depressive Disorder, Intermittent Explosive Disorder and Stimulant Abuse. In summary, the applicant has a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 12 August 2020, and by a 5-0 vote, the Board determined the narrative reason for the applicant's separation is improper based on the applicant's length of service including combat service (i.e. in-service and post-service diagnosis of PTSD, TBI and OBHI). Therefore, the Board directed the issue of a new DD Form 214 updating the characterization to general under honorable conditions, changing the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. (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 September 2011 c. Separation Facts: (1) Pursuant to Special Court Martial Empowered to Adjudge a Bad Conduct Discharge: The applicant was found guilty of with intent to avoid hazardous duty namely: ISO CONOP Iraqi Freedom, absent himself from his unit in desertion from 22 November 2008 until he was apprehended on or about 13 January 2010. (2) Adjudged Sentence: On 11 May 2010, the applicant was sentenced to be reduced to the grade of E-1, confinement for five months, forfeit of $964.00 pay per month for five months, and to be discharged from the service with a bad conduct discharge. (3) Date/Sentence Approved: The sentence was approved, and except for the part of the sentence extending to a bad-conduct discharge was executed. The applicant was credited with 135 days of confinement against the sentence to confinement. The sentence to confinement had been served. (4) Appellate Review: The record of trial was forwarded to The Judge Advocated General of the Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the remaining finding of guilty. The sentence to confinement having been served. Article 71(c) having been complied with, the bad-conduct discharge was ordered to be executed (5) Date Sentence of BCD Ordered Executed: 8 August 2011 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 March 2008 (OAD) / 326 days b. Age at Enlistment / Education / GT Score: 19 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 63B10, Wheeled Vehicle Mechanic / 4 years, 5 months, 11 days d. Prior Service / Characterizations: ARNG, 10 February 2006 to 30 May 2006 / NA ADT, 31 May 2006 to 19 August 2006 / NA ARNG, 20 August 2006 to 11 June 2007 / NA ADT, 12 June 2007 to 7 September 2007 / UNC ARNG, 8 September 2007 to 18 March 2008 / NA (Concurrent Service) e. Overseas Service / Combat Service: SWA / Iraq (19 March 2008 to 1 November 2008) f. Awards and Decorations: NDSM, GWOTSM, ICM-CS, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial, dated 11 May 2010, for violation of Article 85, for one specification of desertion. The applicant was sentenced to be reduced to the grade of E-1, confinement for five months, forfeit of $964.00 pay per month for five months, and to be discharged from the service with a bad conduct discharge.. Special Court-Martial Orders as described in previous paragraph 3c(2) Offer to Plead Guilty, dated 14 April 2010, which the applicant agreed to the pending charges against him of going AWOL. i. Lost Time / Mode of Return: The DD Form 214 under review makes reference to 490 days of excess (13 May 2010 to 14 September 2011) j. Diagnosed PTSD / TBI / Behavioral Health: The medical documents submitted by the applicant from the Poplar Bluff, MO VAMC, make reference to the applicant being known to have traumatic brain injury. The applicant stated that he was exposed to IED blast and loss consciousness from the blast waive. He was prescribed trazodone. The documents also make reference to Depression, PTSD, and Anxiety disorder (other than PTSD) in 23-A of the progress notes. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 in lieu of DD Form 293; Department of Veterans Affairs Statement in Support of Claim document; medical documents from the Poplar Bluff, MO VAMC; NGB Form 22 for a prior period of service; DD Form 214 for a prior period of service; and DD Form 214 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: None submitted 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. 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 honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. 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 seeks relief contending that he has been diagnosed with PTSD and continues to get treatment for his conditions. The applicant contends that he deployed to Iraq in 2008 and his DD form 214 shows continuous honorable active service from 19 March 2008 to 21 November 2008. He suffered injuries when his base at Tallil Air Base in Iraq was struck by a motor round. He was knocked unconscious and many people were injured and killed during the attack. This made him stressed the entire time he was deployed. This is when his PTSD symptoms began. He went home to be with his wife (now his ex-wife) who was pregnant with their second child and was on bed rest. He did not want to leave her as the doctor said it was serious. His PTSD and stress over possibly losing his child caused him to not think correctly and was given a court martial and a Bad Conduct discharge after his deployment. The applicant's contentions were noted; however, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. While the applicant may believe his symptoms of PTSD and stress were the reasons for his misconduct the record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. The service record does not support the applicant's contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. 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 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 12 August 2020, and by a 5-0 vote, the Board determined the narrative reason for the applicant's separation is improper based on the applicant's length of service including combat service (i.e. in-service and post-service diagnosis of PTSD, TBI and OBHI). Therefore, the Board directed the issue of a new DD Form 214 updating the characterization to general under honorable conditions, changing the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / 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 AR20190009187 1