1. Applicant's Name: a. Application Date: 17 June 2019 b. Date Received: 24 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, had a period of first enlistment of honorable that was bundled into his last enlistment which resulted in a BCD by court-martial. The applicant contends, did not know of suffering from PTSD from time in the honorable period via deployment to KOSOVO in June of 1999. The applicant has been seeking treatment for this and is being treated as well. The applicant has no criminal history prior the service and no criminal history since separating from the service. The applicant has held down a job with the state of California as an equipment manager for the Department of Transportation for the last 10 plus years. The applicant believes discharge was unjust for the fact that the applicant nor the court knew that the applicant was suffering from PTSD. 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) contains no content regarding applicant. The applicant is 100% service-connected from the VA. In summary, the applicant has a BH diagnosis that is partially mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 19 August 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 length of service including combat service and post service diagnosis. 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: 16 August 2006 c. Separation Facts: (1) Pursuant to Special Court Martial Empowered to Adjudge a Bad Conduct Discharge: The applicant was found guilty of the following: Charge I, in violation of Article 86: Being absent from his place of duty from 24 July 2002 until his return on 12 February 2004; and Being absent from his place of duty from 15 June 2004 until his return on 30 August 2004; and Charge II, in violation of Article 142: For wrongfully and without authority, wearing upon his uniform the Ranger Tab between 17 June 2001 and 14 November 2001. (2) Adjudged Sentence: On 27 January 2005, the applicant was sentenced to be reduced to the grade of E-1, confined for six months, and to be discharged from the service with a bad conduct discharge (3) Date/Sentence Approved: On 31 March 2005, 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 12 days of confinement against the sentence to confinement. (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 applicant was credited with 12 days of confinement credit against the sentence to confinement. The portion of the sentence extending 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: 9 February 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 October 2000 / 3 years b. Age at Enlistment / Education / GT Score: 23 / GED / 121 c. Highest Grade Achieved / MOS / Total Service: E-5 / 13B10, Cannon Crewmember / 8 years, 7 months, 8 days d. Prior Service / Characterizations: RA, 22 November 1995 to 16 October 2000 / HD e. Overseas Service / Combat Service: SWA / (KOSOVO; period of service unknown) f. Awards and Decorations: NDSM g. Performance Ratings: June 1999 to February 2000, Fully Capable March 2000 to October 2000, Among the Best h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 9 January 2002, for being absent from his unit from 11 December 2001 until his return on 14 December 2001 and wrongfully and without authority wearing upon his uniform the Parachutist Badge between 11 June 2001 and 14 November 2001. The punishment consisted of reduction to E-4, forfeiture of $826.00 pay per month for two months, and extra duty and restriction for 45 days. Special Court-Martial, dated 27 January 2005, for violation of Article 86, for two specification of being absent from his place of duty (24 July 2002 to 12 February 2004 and 15 June 2004 to 30 August 2004) and one specification of violation of Article 134, by wrongfully and without authority, wearing upon his uniform the Ranger Tab between 17 June 2001 and 14 November 2001. The applicant was sentenced to be reduced to E-1, confinement for six months, and to be discharged from the service with a bad-conduct discharge. Special Court-Martial Orders as described in previous paragraph 3c(2) Several DA Form 4187's (Personnel Actions) changing the applicant's duty status. i. Lost Time / Mode of Return: Lost time for a total of 792 days: absent without Leave for a total of 658 days: 581 days (16 July 2002 to 12 February 2004 / mode of return apprehended; 77 days (15 June 2004 to 30 August 2004) / mode of return unknown; and confinement military authority as a result of Special Court-Martial 134 days (27 January 2005 to 10 June 2005). j. Diagnosed PTSD / TBI / Behavioral Health: NIF; however, documents submitted by the applicant make reference to he has been awarded 70 percent service connected disability for post-traumatic stress disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; disability documents showing the applicant has been awarded 70 percent service connected disability for post-traumatic stress disorder; 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 had a period of his first enlistment of honorable that was bundled into his last enlistment which resulted in a BCD by court-martial. The applicant contends that he did not know that he was suffering from PTSD from his time in the honorable period via deployment to KOSOVO in June of 1999. He has been seeking treatment for this and is being treated as well. He has no criminal history prior the service and no criminal history since separating from the service. He has held down a job with the state of California as a equipment manager for the Department of Transportation for the las 10 plus years. The applicant believes his discharge was unjust for the fact that he nor the court knew that he was suffering from PTSD. The applicant's contention were noted; however, 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 fact the Veterans Administration may have granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. The available evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. 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 19 August 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 length of service including combat service and post service diagnosis. 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. 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 AR20190009620 1