1. Applicant's Name: a. Application Date: 9 May 2019 b. Date Received: 20 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 discharge. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, that during basic training and throughout his career, he was trained to defend himself and others to fight for himself and others. He was taught to fight the enemies. Throughout his military career, himself and people close to him were harassed and made fun of until he just couldn't take it anymore and started to hear voices in his head. He started to not want to go to work so that no one would harass or bother him. This led him to defending himself and others, trying to stay away, and ending up in jail where he was found not guilty to multiple charges and was lied on but was still kicked out of the Army. Instead of anyone trying to help him deal with his mental issues in the Army, he was kicked out and left to figure it out on his own in the real world. He has not been able to figure it out yet, he was considered the bad person and given a bad conduct discharge. Today he is still dealing with those mental issues and can't afford any help. He can't even find good jobs. He still feels like the world is against him. He has been using tobacco and alcohol to try to deal with it which has had him in the hospital. He doesn't know what to do anymore. He believes that his discharge should be upgraded due to having developed mental issues AFTER what he learned and was trained on after joining the Army. He has a family now and deserves to be able to utilize his benefits and get the help that he needs. In a records review conducted on 27 October 2021, and by a 5 - 0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: 25 March 2009 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 8, dated 18 April 2008, on 12 December 2007, 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 and being absent from his unit between 26 July 2007 to 6 September 2007; Charge II, in violation of Article 128 of unlawfully striking PV2 J.A. H. on the head with his hand and assaulting PFC S.J. by striking him with his hand on 27 August 2007; unlawfully striking PFC J.C., on the head with his hand on 8 September 2007 and on his head and torso with his hands and feet on 9 September 2007; and Charge III, in violation of Article 134, unlawfully carrying on his person a concealed weapon on 27 August 2007. (2) Adjudged Sentence: Confinement for 7 months and to be discharge from service with a Bad-Conduct Discharge (3) Date/Sentence Approved: On 18 April 2008, the sentence 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 91 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. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: Special Court-Martial Order Number 31, dated 11 February 2009, ordered the execution of the bad-conduct discharge. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 April 2007 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-2 / 25U10, Signal Support Systems Specialist / 1 year, 4 months, 8 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: DA Form's 4187 (Personnel Action) changing the applicant's duty status as following: Present for Duty (PDY) to Confinement Military Authorities (CMA), effective 12 September 2007 CMA to PDY, effective 7 March 2008 Special Court-Martial, see paragraph 3c (1) above. i. Lost Time / Mode of Return: Total time lost 220 days; Absent without leave 43 days (26 July 2007 to 6 September 2007) / mode of return unknown; and Confinement Military Authorities 177 (12 September 2007 to 6 March 2008). The DD Form 214 under review makes reference to 384 days of excess leave (7 March 2008 to 25 March 2009) j. Diagnosed PTSD / TBI / Behavioral Health: Medical documents submitted by the applicant indicate he suffers with hypertension, major depressive disorder, and alcoholism/alcohol abuse. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; court-martial documents; mental health document to include medication list; letter from his spouse; and DD Form 214 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the 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 general (under honorable conditions). The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The AMHRR 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 during basic training and throughout his career, he was trained to defend himself and others to fight for himself and others. He was taught to fight the enemies. Throughout his military career, himself and people close to him were harassed and made fun of until he just couldn't take it anymore and started to hear voices in his head. He started to not want to go to work so that no one would harass or bother him. This led him to defending himself and others, trying to stay away, and ending up in jail where he was found not guilty to multiple charges and was lied on but was still kicked out of the Army. Instead of anyone trying to help him deal with his mental issues in the Army, he was kicked out and left to figure it out on his own in the real world. He has not been able to figure it out yet, he was considered the bad person and given a bad conduct discharge. Today he is still dealing with those mental issues and can't afford any help. He can't even find good jobs. He still feels like the world is against him. He has been using tobacco and alcohol to try to deal with it which has had him in the hospital. He doesn't know what to do anymore. He believes that his discharge should be upgraded due to having developed mental issues AFTER what he learned and was trained on after joining the Army. He has a family now and deserves to be able to utilize his benefits and get the help that he needs. The applicant's contentions were noted; evidence submitted by the applicant indicates he suffers with hypertension, major depressive disorder, and alcoholism/alcohol abuse. It should be noted 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. It should also be noted; 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. 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. Applicant has been diagnosed with Major Depressive Disorder (MDD), a potentially mitigating BH condition. (2) Did the condition exist or experience occur during military service? No. There is no evidence that the applicant's diagnosis of MDD, made 9 years after he was discharged from the service, existed in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. Applicant's civilian medical documentation indicates he was diagnosed with MDD on 16 March 2018. There is no evidence in his military medical records that he suffered from this diagnosis while on active duty. Given that the median duration of Major Depressive Disorder is 3 months, it is unlikely that his 2018 episode of Major Depressive Disorder began 9 years earlier while he was on active duty, thus could not excuse or mitigate the applicant's FTRs, AWOL, assault, and weapon concealment. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's non-medically mitigated offenses of bad conduct with AWOL, assault, unlawfully carrying on his person a concealed weapon and FTR outweighed the applicant's post-service BH diagnosis of MDD for the reasons listed in (3) above. b. Applicant contends that during basic training and throughout his career, he was trained to defend himself and others, to fight for himself and others. He was taught to fight the enemies. The record confirms the applicant's discharge was appropriate as the misconduct was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. Additionally, the applicant did not provide any evidence supporting the basis for separation or mitigating circumstances for the Board to consider. c. The Board determined the discharge is, at this time, proper and equitable, in light of the current evidence of record. 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 not to change the applicant's characterization of service because, despite applying liberal consideration, the applicant's post-service BH diagnoses of MDD did not excuse or mitigate the offenses of list the offenses of bad conduct with AWOL, assault, unlawfully carrying on his person a concealed weapon and FTRs. The applicant did not supply sufficient independent corroborating evidence to support contentions, and 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. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and 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 / Separation Order: No b. Change Characterization to: No Change 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 AR20190009452 6