1. Applicant's Name: a. Application Date: 2 May 2019 b. Date Received: 20 June 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the bad conduct discharge to honorable, general (under honorable conditions) or uncharacterized. The applicant seeks relief contending, in effect, the Vet Center Mental Health suggests the reason for discharge was due to PTSD. The applicant further details the circumstances, which contributed to the PTSD in a Statement In Support of Claim, submitted to the Department of Veterans Affairs. The applicant stated, it was around the fall of 2002, when it all began. The bullying and constant harassment from 1SG M. The applicant does not know and does not understand why the 1SG chose the applicant. The applicant questions "why me", repeatedly. The applicant endured 1SG M's torturous behavior until April 2003. The applicant deployed to Iraq February 2003, and even during active combat, his 1SG found time to verbally and mentally torture the applicant and issue threats of physical harm. The applicant states, when 1SG M believed it was not enough, he recruited his fellow peers as well as subordinates to assist with the abuse of the applicant. The applicant states, during the same time the applicant was dealing with the 1SG, the applicant's grandfather passed away. The death of grandfather and the constant bullying the applicant was forced to endure at the hands of the 1SGT and others was overwhelming. The applicant had no one to talk with and no one available to help cope. The applicant states that after return from emergency leave for grandfather's death, the abuse hit an all-time high. The applicant was informed of retaliation, but he does not recall this reaction. The applicant only remembers the MPs attacking and treating the applicant as an animal and not a member of the Army. The applicant was locked in a wooden and rebar box, which was not large enough to stand and did not provide protection from deadly reptiles and spiders. The applicant was kept there for three weeks enduring the desert elements. A doctor came to see the applicant, but offered no solution or insight to mental state and afterwards the applicant was court martialed. The applicant sates, being involuntarily separated from the Army caused additional depression, and became isolated, angry, paranoid and anxious. The applicant suffers from insomnia and is unable to keep a job. The PTSD has made it difficult in his personal life, and turned to alcohol to ease the pain. The applicant wants help, and is requesting help because mental health and family are at stake. 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 shows no active duty or VA BH diagnosis, the Board considered PTSD diagnosis. The applicant is not 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 14 August 2020, and by a 5-0 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: 8 December 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 3, dated 29 June 2004, on 7 July 2003, the applicant was found guilty of the following: Charge I. Article 128. Specification: On or about 8 May 2003, unlawfully strike SFC J. M. by hitting him in the face, head, chest and shoulders with a closed fist and knee. Plea: Guilty. Finding: Guilty. Charge II. Article 91. Specification: Having received a lawful order from SFC J. M., a noncommissioned officer, to take all the trash on top of the orange dumpsters and put it into trash bags, or words to that effect, an order which it was his duty to obey, did, on or about 15 April 2003, willfully disobey the same. Plea: Guilty. Finding: Guilty. (2) Adjudged Sentence: Reduction to E-1; to be confined for six months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 29 June 2004 / only so much of the sentence, a reduction E-1, confinement for 60 days, and a bad conduct discharge was approved and, except for that part of the sentence extending to a bad conduct discharge, would be executed. The applicant was credited with 60 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: 14 July 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 January 2000 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 88M10, Motor Transport Operator / 6 years, 5 months, 28 days / The applicant was retained in service 910 days for the convenience of the Government. d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait (15 April 2003 - 7 June 2003) / The applicant's DD Form 214 reflects the applicant served in Kuwait, however, evidence of the record reflects he served in Iraq. f. Awards and Decorations: NDSM, GWOTEM, ASR 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 7 June 2003: and, From "CMA" to "PDY," effective 7 November 2003. i. Lost Time / Mode of Return: 153 days (CMA, 7 June 2003 - 6 November 2003) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided copies of his post- service medical treatment records, which reflect he was treated for: PTSD, depression; anxiety. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; VA Treatment Summary; RCS Client Information Record (medical treatment records); VA Form 21-4138; self-authored statement; three letters of support; Clinical Social Worker letter; email; Certificate of Service. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided evidence that he has obtained employment. 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, general (under honorable conditions) or uncharacterized. 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 he was suffering from undiagnosed PTSD, which affected his behavior. The applicant contends has been treated post-service for PTSD. 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. Further, the applicant's medical conditions he 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 medical 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 applicant contends that he was harrased by members of his chain of command; however, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. The applicant contends that he was suffering from the loss of his grandfather, which affected his behavior and in part, caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. 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 third party statements provided with the application speak highly of the applicant's performance. They all recognize his good conduct while serving the Army; 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 applicant contends that an upgrade of his discharge would allow veterans benefits through the use of 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 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 5-0 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 AR20190010364 3