1. Applicant's Name: a. Application Date: 11 June 2019 b. Date Received: 14 June 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from bad conduct to general (under honorable conditions). The applicant seeks relief contending, in effect, has PTSD, needs assistance in health care, livelihood, become a better person and help take care of the kids. The discharge was inequitable because it was based on an isolated incident during 64 months of service. The applicant was a good Soldier that lost footing on solid ground. The applicant has no insurance and cannot be seen to get proper medical treatment. 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 no BH diagnoses while on active duty. The applicant does not have any VA records available for review. In summary, the applicant does not have any BH diagnoses that are mitigating for the misconduct which led to separation from the Army. In a personal appearance hearing conducted at Arlington, VA on 9 March 2020, 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 the applicant's length of service, homelessness, and post-service accomplishments. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to general under honorable conditions. A change in the reason for discharge is not authorized under Federal statute. (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: 20 April 2007 c. Separation Facts: NA (1) Date of Notification of Intent to Separate: NA (2) Basis for Separation: The applicant was found guilty by a Special Court-Martial of the following offenses: without authority, absented himself from his unit (27 January 2004 until 9 February 2004), until apprehended; disrespectful in language towards SGT S.H., a noncommissioned officer, who was then in the execution of his office, by saying to him "what goes around comes around" or words to that effect (26 August 2003); fail to obey a lawful order issued by CPT C.M., to not wear civilian clothes (14 December 2003); fail to obey a lawful order issued by LTC B.C.S., to serve on extra duty for 30 days (10 January 2004 and 11 January 2004); make to military police an official statement, "I was hit from behind" which statement was totally false and then known by him to be so false (13 June 2003); willfully damage the wall in his barracks room by punching a hole in it, military property of the US, the amount of the said damage being in the sum of $87.31 (8 June 2003); and wrongfully use marijuana, a controlled substance x2 between (12 November 2003 and 11 December 2003) and (21 December 2003 and 20 January 2004). On 26 February 2004, he was sentenced to be to be confined for seven months and to be discharged from the service with a bad conduct discharge. On 1 October 2004, the sentence was approved. The record of trial was forwarded to The US Army Court of Criminal Appeals for review. On 28 April 2006, The US Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. On 26 October 2006, the sentence was finally affirmed and Article 71(c) having been complied with, the bad conduct discharge was ordered to be executed. (3) Recommended Characterization: NA (4) Legal Consultation Date: NA (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 20 April 2007 / Bad-Conduct 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 October 2002 / 3 years b. Age at Enlistment / Education / GT Score: 19 years / HS Graduate / 89 c. Highest Grade Achieved / MOS / Total Service: E-2 / 92G10, Food service Operations / 3 years, 10 months, 29 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial, see paragraph 3c(2) above. i. Lost Time / Mode of Return: AWOL for 11 days, 27 January 2004 to 7 February 2004; and Confinement Military Authorities for 199 days, 8 February 2004 to 26 August 2004. Total lost time 209 days. Applicant also had 967 days of excess leave, 27 August 2004 to 20 April 2007. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages). 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 a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and 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. 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 the characterization of service from bad conduct to general (under honorable conditions). The applicant's record of service and 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, in effect, he has PTSD, needs assistance in health care, livelihood, become a better person and help take care of his kids; and he has no insurance and cannot be seen to get proper medical treatment. The service record contains no evidence of PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant further contends, his discharge was inequitable because it was based on an isolated incident during 64 months of service. 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 also contends, he was a good Soldier that lost footing on solid ground. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of court martial proceeding were carefully considered. 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 judicial due process. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): Applicant provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence c. Counsel / Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 9 March 2020, 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 the applicant's length of service, homelessness, and post- service accomplishments. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to general under honorable conditions. A change in the reason for discharge is not authorized under Federal statute. 11. 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 AR20190009370 1