1. Applicant's Name: a. Application Date: 16 September 2019 b. Date Received: 19 September 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from bad conduct to honorable. The applicant seeks relief contending, in effect, He was discharged due to TBI while in Iraq and the symptoms that followed. He had a brain injury with TBI in Iraq in 2006. He had a MRI with continuing signs of memory loss and irritability that worsen over time. 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 diagnoses of PTSD; Adjustment Disorder with anxiety and depressed mood; Anxiety Disorder NOS; Depression; Marital Problem. The applicant 40% service connected, 30% for combat-related PTSD. VA Rating Decision denied the applicant's claim for service connection for TBI that indicated the applicant did not have a current diagnosis of TBI. 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 28 October 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: 4 March 2011 c. Separation Facts: NA (1) Date of Notification of Intent to Separate: NA (2) Basis for Separation: The applicant was found guilty by a Special Court-Martial of the following offenses; having received a lawful command from CPT N.R.S., his superior commissioned officer, to not contact or communicate with any IET Soldiers, either directly or through a third party, unless for official business, or words to that effect, did willfully disobey the same on divers occasions between (14 February 2009 and 30 June 2009); having received a lawful command from CPT J.L.B., his superior commissioned officer, to not contact PVT / E-1 E.R.G., or trainees of any kind at 143rd Ord Bn, or words to that effect, did willfully disobey the same (31 July 2009); violate a lawful general regulation, by wrongfully having a relationship not required by the training mission with PFC D.M.W., an IET trainee, by asking her to go to a party at Iguana Cantina, sending her a shirtless photograph of himself to her cellular telephone, sending her personal text messages from his cellular telephone, soliciting her to go out for drinks, asking her to send him nude photographs of herself, and by her sending nude photographs of herself to his cellular telephone between (1 December 2008 and 31 January 2009); violate a lawful general regulation, by wrongfully having a relationship not required by the training mission with PFC C.L.R., an IET trainee, by having personal conversations with her via cellular telephone, soliciting her for sex, sending her text messages of a sexual nature, and driving in his privately owned vehicle to Applebee' s to have a meal together between (1 September 2008 and 18 November 2008); violate a lawful general regulation, by wrongfully having a prohibited relationship with PFC C.L.R., by soliciting her for sex, sending text messages asking her to go to the Days Inn Inner Harbor Hotel, sending text messages of a sexual nature, and driving her in his privately owned vehicle to Applebee's and Sherri's to have meals together between (19 November 2008 and 31 December 2008); violate a lawful general regulation, by wrongfully having a relationship not required by the training mission with PVT / E-1 K.A.F., an IET trainee, by transporting her in his privately owned vehicle to his on-post residence and having her as a visitor inside his on-post residence between 1 January 2009 and 11 January 2009); violate a lawful general regulation, by wrongfully having a prohibited relationship with PVT M.S.K., and PVT C.H., by transporting them in his privately owned vehicle and socializing with them at Iguana Cantina and Days Inn Inner Harbor Hotel between (1 December 2008 and 18 December 2008); with intent to deceive, make to Special Agent E.T.R., official statements, by answering "professional when asked, "What was the nature of your relationship with PFC C.L.R.," or words to that effect, answering "Just in case in (sic) emergency, if she needed something" when asked, "why did you give you (sic) cell phone number to (PFC M.D.W., (sic, and answering "No" when asked "At any time since you have been assigned here have you been involved with any fraternization or have been involved in a sexual relationship with any other private,' or words to that effect, which statements were false in that Sergeant R. had a personal relationship not required by the training mission with PFC C.L.R. and PFC D.M.W., and were then known by the said Sergeant R. to be so false (10 February 2009); and having received a lawful command from CPT J.L.B., his superior commissioned officer, to not contact PVT / E-1 E.R.G., or words to that effect, did willfully disobey the same x4 (27 September 2009, 29 September 2009, 8 October 2009 and 23 October 2009). On 19 February 2010, he was sentenced to be reduced to PVT / E-1, to be confined for 5 months; and to be discharged from the Service with a Bad-Conduct Discharge. On 17 May 2010, the sentence was approved. The record of trial was forwarded to The US Army Court of Criminal Appeals for review. On 22 July 2010, The US Army Court of Criminal Appeals affirming the approved findings of guilty and the sentence is not contained in the available record and government regularity is presumed in the judicial process. On 24 November 2010, the sentence was finally affirmed and Article 71(c) having been complied with, the bad conduct discharge was ordered to be executed. (3) Recommended Characterization: NA (4) Legal Consultation Date: NA (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 4 March 2011 / Bad-Conduct 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 October 2008 / 6 years b. Age at Enlistment / Education / GT Score: 31 years / HS Graduate / /NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 91 H10, Track Vehicle Repairer / 11 years, 10 months, 1 day d. Prior Service / Characterizations: RA, 8 January 1999 to 16 November 2003 / HD RA, 17 November 2003 to 5 March 2006 / HD RA, 6 March 2006 to 7 October 2008 / HD e. Overseas Service / Combat Service: Korea / SWA / Iraq x2, 27 April 2003 to 5 March 2004 and 5 March 2005 to 14 February 2006 f. Awards and Decorations: ARCOM-2, AAM-4, AGCM-3, NDSM, GWOTEM, ICM-2CS, GWOTSM, KDSM, NOPDR, ASR, OSR-4 g. Performance Ratings: 18 June 2008 to 23 January 2009, Among The Best 24 January 2009 to 23 January 2010, Marginal h. Disciplinary Action(s) / Evidentiary Record: The VA Rating Decision, dated 12 October 2008, denied the applicant's claim for service connection for Traumatic Brain Injury (TBI) based on the VA examination dated 4 October 2018, the applicant did not have a current diagnosis of TBI. Special Court-Martial, see paragraph 3c(2) above. i. Lost Time / Mode of Return: Military confinement for 115 days, 19 February 2010 to 14 June 2010. j. Diagnosed PTSD / TBI / Behavioral Health: Patient Encounters Detail, dated 12 May 2009 and 19 May 2009, revealed the applicant was diagnosed with PTSD and depressive disorder, not elsewhere classified and an adjustment disorder with mixed anxiety and depressed mood. Patient Encounters Detail, dated 18 August 2009, relates the applicant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood, anxiety state, unspecified and other occupational circumstances or maladjustment. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (two pages); VA Rating Decision, undated (pages 2-6); and medical record (18 pages). 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 a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and 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 imposed. 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 the characterization of service from bad conduct 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, he was discharged due to TBI while in Iraq and the symptoms that followed; and he had a brain injury with TBI in Iraq in 2006. The available medical evidence provided by the applicant shows that a VA Rating Decision, dated 12 October 2008, denied the applicant's claim for service connection for TBI based on the VA examination dated 4 October 2018, the applicant did not have a current diagnosis of TBI. The applicant further contends, he had a MRI with continuing signs of memory loss and irritability that worsen over time. 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. Of note, the applicant submitted medical documents show he had diagnoses of PTSD, depressive disorder, not elsewhere classified and an adjustment disorder with mixed anxiety and depressed mood, adjustment disorder with mixed anxiety and depressed mood, anxiety state, unspecified and other occupational circumstances or maladjustment. 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 28 October 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 / 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 AR20190012429 1