1. Applicant's Name: a. Application Date: 4 June 2019 b. Date Received: 17 June 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his from bad conduct discharge to honorable and to change the narrative reason for his discharge. The applicant seeks relief contending, in pertinent part and in effect, upon completing basic training and arriving at his duty station at Hunter Army Airfield, he was deployed to Iraq for eight months in 2003. Upon redeployment, he did not seek proper mental health treatment for his experiences, and the things he had seen and was exposed to during his deployment. He expresses his remorse for his actions. He wrongfully used marijuana and failed drug testing. Reflecting on the decisions he made the and now understanding PTSD and subsequent behavioral health issues from combat, he would have sought help and dealt with his issues in a more constructive and appropriate manner to continue his duties with the Army. He was young then and naïve about the severity of PTSD and mental illness, and continued making poor choices. After eight years, he began to understand more about treatments and needing help for his issues stemming from his deployment. He has made it a personal mission to get help, and be actively and continually involved with his two sons in their lives, education, and activities, and be an upstanding member of his community. He has worked hard to remain gainfully and competitively employed to provide for his family. A change to his current discharge would allow him to continue to receive treatment and professional help dealing with his mental health issues. 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) contain no information on the applicant. The applicant is not service-connected from the VA. In summary, the applicant does not have 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 26 August 2020, and by a 3-2 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 equity (discharge too harsh) and post service accomplishments. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to general under honorable conditions. (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: 15 November 2006 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 47, dated 1 October 2004, the applicant was found guilty of the following charges: Charge: Two Specifications of violating Article 112a, UCMJ, for wrongfully using marijuana on two separate occasions, between 3 November 2003 and 2 December 2003, and between 19 October 2003 and 18 November 2003. Additional Charge: Violation of Article 112a, UCMJ, for wrongfully using marijuana between 7 December 2003 and 8 January 2003. (2) Adjudged Sentence and Date: To be reduced to the grade of PVT E-1, to forfeit $736 pay per month for 12 months, to be confined for 5 months, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 17 February 2004. (3) Date Sentence Approved: On 1 October 2004, the sentence was approved, and except for part of the sentence extending to a Bad Conduct Discharge, would be executed, but that the confinement in excess of three months was suspended for three months at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted without further action, and that the applicant was credited with 7 days of confinement against the adjudged sentence of confinement. (4) Appellate Reviews: According to Special Court-Martial Order 121, dated 2 June 2006, the promulgated findings and sentence of Special Court-Martial Order No. 47, dated 1 October 2004, had finally been affirmed and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 2 June 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 February 2002 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92A10, Automated Logistical Specialist / 4 years, 7 months, 5 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / NIF f. Awards and Decorations: NDSM; ASR; USA/AF PUC g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 47, dated 1 October 2004, described at the preceding paragraphs 3c(1)-(3). Special Court-Martial Order Number 121, dated 2 June 2006, described at the preceding paragraphs 3c(4)-(5). i. Lost Time / Mode of Return: 67 days (Military Confinement on 17 February 2004 to 23 April 2004) / The applicant was released from confinement upon completing his court-martial sentence. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 4 June 2019, with self-authored statement; two character reference/supporting statements; and DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: Applicant's documentary evidence indicate that he takes pride in teaching children sports, specifically basketball, and he is very helpful in church. 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 from bad conduct discharge to honorable and to change the narrative reason for his discharge. 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. The applicant requests a change to the narrative reason for his discharge; however, 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 behavioral health issues and a subsequent diagnosis with PTSD, which led to his misconduct by wrongfully using marijuana. 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 there are no medical records available to the Board and 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/PTSD diagnoses and an official record of his deployment to Iraq) for the Board's consideration because they are not available in the official record. In consideration of the applicant's post-service accomplishments, the Board can find that his accomplishments were or were not sufficiently mitigating to warrant clemency by upgrading his characterization of service. The third party statements provided with the application speak highly of the applicant's character. 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. 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 due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 26 August 2020, and by a 3-2 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 equity and post service accomplishments. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to general under honorable conditions. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions 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 AR20190009274 1