1. Applicant's Name: a. Application Date: 9 July 2019 b. Date Received: 17 July 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of the bad conduct discharge to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, the applicant is an Army veteran who served in Operation Enduring Freedom, as a Soldier in Operations Polar Harpoon and Anaconda, seeks this discharge upgrade on clemency grounds as an equitable way to recognize that Bad Conduct Discharge ("BCD") was the result of PTSD. The applicant served in Afghanistan in the aftermath of the attacks on 11 September 2001 and the events he witnessed "defy description." Rocket attacks and enemy combatant gunfire were a part of daily life. The applicant received the Army Achievement Medal for work as an infantry rifleman. When the applicant returned to the U.S. from deployment, transition back to normalcy was difficult. A constant state of hypervigilance and fear took a toll on the applicant and the applicant's mental health. The applicant's family noted a drastic difference in personality. The applicant "seemed distant and kept to himself" and "seemed to be in a race to get away." The applicant began to abuse drugs and alcohol to cope with emotional problems, which resulted in several Article 15 non-judicial punishment ("NJP") proceedings from command. The applicant was later assaulted by fellow Soldiers, leaving the applicant both mentally and physically traumatized. These events only intensified feelings of panic and caused the applicant to go AWOL out of fear for safety. In a special court martial, the applicant was sentenced to six months in prison and received a BCD. The applicant was suffering from undiagnosed PTSD during the events that led to BCD. The applicant petitions the Army Discharge Review Board for a discharge upgrade so that the applicant will no longer be stigmatized and shamed by bad conduct discharge, received because of mental health conditions caused or exacerbated by military service. The Board should review the applicant's claims in accordance with the principles and considerations discussed in the memoranda issued by Anthony M. Kurta, the Under Secretary of Defense for Personnel and Readiness, on 25 August 2017 ("Kurta Memo"). For more than 15 years, the applicant has suffered from PTSD resulting from months spent in a hostile combat zone. His BCD prevents the applicant from accessing VA Benefits which would allow treatment for the disorder. The stigma of discharge is a black mark on an otherwise productive life and separates the applicant from the veteran community and family's legacy of proud service. The applicant served with honor in the U.S. Army. The applicant's pattern of misconduct is mitigated by the PTSD developed while deployed in Afghanistan. The applicant's petition for an upgrade is subject to the standards established by the Hagel and Kurta Memos, which mandate liberal consideration for veterans suffering from PTSD at the time of their discharge, and on grounds of clemency for the inequities and injustice the applicant has dealt with since being separated. Counsel further details the contentions in an allied legal brief provided with the application. 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 diagnoses of BH conditions. The applicant is not service-connected from the VA. The VA has not diagnosed the applicant with PTSD. 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 14 August 2020, and by a 3-2 vote, the Board denied the request upon finding the separation was both proper and equitable. (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: 24 March 2006 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 9, dated 2 October 2013, on 17 July 2003, the applicant was found guilty of the following: Charge I: Article 86, UCMJ. Plea: Guilty. Finding: Guilty. Specification 1: Did, at Fort Drum, New York, on or about 8 April 2003, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0700 accountability formation, located at A Company, 4th Battalion, 31st Infantry Regiment, Fort Drum, New York. Plea: Guilty. Finding: Guilty. Specification 2: Did, on or about 1 !5 April 2003, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: the Company Charge of Quarters desk every hour between the hours of 1500 and 2300, located at A Company, 4th Battalion, 31st Infantry Regiment, Fort Drum, New York. Plea: Not Guilty. Finding: Not Guilty. Specification 3: Did, on or about 8 May 2003, without authority, absent himself from his unit, to wit: A Company, 4th Battalion, 31st Infantry Regiment, located at Fort Drum, New York, and did remain so absent until on or about 12 May 2003. Plea: Guilty. Finding: Guilty. Specification 4: Did, on or about 16 May 2003, without authority, absent himself from his unit, to wit: A Company, 4th Battalion, 31st Infantry Regiment, located at Fort Drum, New York, and did remain so absent until he was apprehended on or about 22 May 2003. Plea: Guilty. Finding: Guilty. Charge II: Article 91, UCMJ. Plea: Not Guilty. Finding: Not Guilty. Charge Ill: Article 112a, UCMJ. The Specification: Did, at Fo1t Drum, New York, between on or about 29 April 2003 and on or about: 31 April 2002, wrongfully use marijuana. Plea: Guilty. Finding: Guilty. Charge IV: Article 134, UCMJ. Plea: Guilty. Finding: Guilty. Specification 1: Having been restricted to the limits of the barracks, place of duty, dining facility, place of worship, and medical facility, by a person authorized to do so, did, at Fort Drum, New York, on or about 2 May 2003, break said restriction. Plea: Guilty. Finding: Guilty. Specification II [sic]: Having been restricted to the limits of the barracks, place of duty, dining facility, place of worship, and medical facility, by a person authorized to do so, did, at Fort Drum, New York, on or about 6 May 2003, break said restriction. Plea: Guilty. Finding: Guilty. Additional Charge, I: Article 85: UCMJ. Plea: Not Guilty. Finding: Not Guilty. Additional Charge II: Article 95, UCMJ. Plea: Not Guilty. Finding: Not Guilty. Additional Charge 3 [sic]: Article 95, UCMJ. The Specification: Having been placed in pre-trial confinement in the Lewis County Jail, Lowville, New York, by a person authorized to order the accused into confinement did, at Fort Drum, New York, on or about 8 June 2003, escape from confinement. Plea: Guilty. Finding: Guilty. Additional Charge 4 [sic]: Article 85, UCMJ. Plea: Not Guilty, but guilty of a violation of Article 86, AWOL terminated by apprehension. Finding: Not Guilty, but guilty of the lesser-included offense of AWOL terminated by apprehension, in violation of Article 86. The Specification: Did, on or about 8 June 2003, without authority and with intent to remain away therefrom permanently, absent himself from his place of duty, to wit: confinement at the SDNCO area in Building #1012D, located at Fort Drum, New York, and did remain so absent in desertion until he was apprehended on or about 10 June 2003. Plea: Not Guilty, but guilty of a violation of Article 86, AWOL terminated by apprehension. Finding: Not Guilty, but guilty of the lesser- included offense of AWOL terminated by apprehension, in violation of Article 86. (2) Adjudged Sentence: To be confined for six months, forfeit $767 pay per month for six months and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 2 October 2003 / only so much of the sentence, confinement for six months, forfeiture of $767 pay per month for six months and a bad conduct discharge was approved and, except for the part of the sentence extending to a bad conduct discharge, would be executed. The applicant was credited with 56 days of confinement towards 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: 24 January 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 August 2001 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 113 c. Highest Grade Achieved / MOS / Total Service: E-2 / 11B10, Infantryman / 4 years, 2 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (March 2002 - NIF) / The applicant's DD Form 214, reflects the applicant served in Iraq, however, the applicant's service record reflects he served in Afghanistan. f. Awards and Decorations: NDSM, ASR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)" effective 22 May 2003; and, From "CMA" to "PDY," effective17 October 2003. i. Lost Time / Mode of Return: 158 days AWOL, 8 May2003 - 12 May 2003 / NIF AWOL, 16 May 2003 - 21 May 2003 / NIF CMA, 22 May 2003 -16 October 2003 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a clinical assessment from Port Health, dated 25 July 2018, which reflects the applicant was diagnosed wit: Posttraumatic Stress D/O; Alcohol Use D/O, Severe in full remission; and Amphetamine- Type Substance Use D/O, Sever, in full remission. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with allied legal brief and all listed exhibits. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he has not used or abused illegal substances in over a decade and is now married with two daughters. The applicant works as a butcher and is enrolled in college online. 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, through counsel, requests an upgrade of his bad conduct discharge to honorable or general (under honorable conditions). 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 contends after his redeployment from combat, he began to abuse drugs and alcohol to cope with his emotional problems. The applicant contends he has been diagnosed post-service with PTSD, which was undiagnosed during his service and affected his behavior. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The applicant's service record is void of a mental status evaluation. It appears the applicant's chain of command determined that he knew the difference between what was right and wrong. The applicant contends that he had good service which included a combat tour. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant contends that an upgrade of his discharge would allow veterans benefits and medical treatment. However, eligibility for veteran's benefits to include medical treatment, 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 third party statements provided with the application speak of the applicant's experiences while in the military. 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. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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 14 August 2020, and by a 3-2 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change 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 AR20190009829 1