1. Applicant's Name: a. Application Date: 20 August 2019 b. Date Received: 29 August 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, he is 36 years old and has a wonderful wife with two great children and a loving family. The applicant states, he was a proud Soldier and loved serving his country in the Army. He served with pride, honor and integrity and while enlisted at Fort Stewart, he was deployed and completed a tour in Iraq. The applicant was stationed at camp Arifjon Kuwait, where he did long missions transporting tanks and heavy equipment dropping off and picking up through the roads of Iraq. During the deployment, the truck he was driving was hit by a road side bomb and the applicant was awarded a combat action badge for his skills, discipline and how he handled himself while being engaged by the enemy. The applicant now suffers from PTSD and at times, he finds himself comparing problems in life while mentally putting himself back down range with all his brothers that he served with. When the applicant returned back to the United States from Iraq, he married and his wife is still by his side, 15 years later. At that time, his daughter's mother had lost custody and the State of Maine had his daughter. A case worker called the applicant and told him how important it was for the applicant to get there and get her before she falls victim of the State. The applicant immediately told his Sergeant, who told the applicant "Family First". The applicant's daughter needed her father and he had to go to Maine to get her and the sergeant would cover for the applicant. Unfortunate for the applicant, the sergeant did not do the proper paperwork and because the applicant was a PFC, nobody had his back. The applicant was trained to always put the mission first, fight, survive, never leave a fallen comrade and protect, which was exactly what he was doing when he went to get his daughter. His reason for being AWOL was because he dropped everything and went to the State of Maine to get his daughter and bring her back to Fort Stewart. The applicant was gone for several days with travel not realizing he was AWOL. Upon his return to formation the next day, he was handcuffed, arrested and taken away in front of his entire unit and taken to a Military Prison at Fort Knox, for seven months. The day he was released from Fort Knox, he was given full custody of his baby girl by the State of Maine. It was a serious situation and during his enlistment, he had never received one write up. The applicant was a very proud Soldier who loved his job and was always ready for duty or to pass any inspection at any time. The applicant loved the Army and the job that he did for his country. Now, he is trying to better his and his family's lives. The discharge is holding him back from many programs and help that he needs to better himself. The applicant states, he is also going in for his second open heart surgery in two years. 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. The applicant is not service-connected from the VA. 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 9 September 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: 22 July 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 59, dated 8 November 2007, on 26 August 2013, the applicant was found guilty of the following: Charge I, in violation of Article 85, Not guilty, but guilty of violation of Article 86. Specification 1: Did, on or about 2 May 2006, without authority and with intent to remain away therefrom permanently, absent himself from his unit, located at Fort Stewart and did remain so absent in desertion until on or about 14 November 2006. Plea: Not Guilty, but Guilty of Absent Without Leave in violation of Article 86 (Specification amended by the Military Judge prior to findings by excepting out the words "and with intent to remain away therefrom permanently" and the words "in desertion." The plea remained the same). Finding: Guilty to the specification as amended. Specification 2: Did, on or about 19 December 2006, without authority and with intent to remain away therefrom permanently, absent himself from his unit, located at Fort Stewart, and did remain so absent in desertion until on or about 21 February 2007. Plea: Not Guilty, but Guilty of Absent Without Leave in violation of Article 86 (Specification amended by the Military Judge prior to findings by excepting out the words "and with intent to remain away therefrom permanently" and the words "in desertion." The plea remained the same). Finding: Guilty to the specification as amended. Charge II. Article 86. Plea: Not Guilty. Finding: Guilty. Specification 1: Did, on or about 6 December 2006, without authority, absent himself from his unit, located at Fort Stewart and did remain so absent until on or about 11 December 2006. Plea: Not Guilty. Finding: Guilty, except the words and figures "11 December," substituting therefor the words and figures "8 December." Of the excepted words and figures: Not Guilty; of the substituted words and figures: Guilty. Specification 2: Plea: Not Guilty. Finding: Not Guilty, upon motion of Defense Counsel. (2) Adjudged Sentence: Reduction to E-1; to be confined for seven months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 8 November 2007 / only so much of the sentence, a reduction E-1, confinement for six months, 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 7 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: 7 May 2009 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 April 2005 / 3 years, 17 weeks b. Age at Enlistment / Education / GT Score: 22 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 88M10, Motor Transport Operator / 3 years, 10 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (17 November 2005 - 13 April 2006) f. Awards and Decorations: NDSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Charge Sheet, dated 27 February 2007, reflects the applicant was charged as described in the 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 6 April 2007; and, From "CMA" to "PDY," effective 24 August 2007. i. Lost Time / Mode of Return: 139 days (CMA, 6 April 2007 - 23 August 2007) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; self-authored statement; CAB Certificate; Permanent Orders 052-06; Orders 320-386; Certificate of Wartime Service; Certificate of Membership; AAM Certificate. 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 a general (under honorable conditions) discharge. 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 suffers from PTSD. However, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant contends that he was having family issues that affected his behavior and ultimately 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 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 applicant contends that an upgrade of his discharge would allow veteran's programs. However, eligibility for veteran's programs, do 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 9 September 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 AR20190011813 4