1. Applicant's Name: a. Application Date: 26 September 2019 b. Date Received: 4 October 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) or under other than honorable conditions. The applicant seeks relief contending, in effect, he has been recently rated by the VA 30 percent disabled for PTSD. The applicant states, PTSD affects one's actions and ability to make sound decisions. His recent recognition and diagnosis of PTSD stemmed from his Gulf War service. The rating was based on severity and chronicity, which means the condition has been chronic in nature since the deployment that caused the 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), notes indicate diagnoses of Adjustment Disorder with depressed mood; Anxiety Disorder NOS; Depression; Panic Disorder with agoraphobia/without agoraphobia. The applicant is 100% 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 23 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 June 2018 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 8 September 2017, on 6 April 2017, the applicant was found guilty of the following: Charge I: Article 93. Plea: Guilty. Finding: Guilty. The Specification: The applicant did on divers occasions between on or about 1 November 2013 and 1 December 2014, did maltreat, SSG J.D., a person subject to his orders by wrongfully sexually harassing her by making deliberate and repeated offensive comments and gestures of a sexual nature. Plea: Guilty. Finding: Guilty. Charge II: Article 120 (after 28 June 2012) Plea: Not Guilty, but Guilty of assault consummated by battery in violation of Article 128. Finding: Guilty, as amended. Specification 1: The applicant did, between on or about 1 December 2013 and on or about 2 December 2013, unlawfully touch Staff Sergeant J.D. on the buttocks with his hands. Plea: Not Guilty, but Guilty of assault consummated by battery in violation of Article 128. [After pleas, but prior to findings, the Military Judge granted Trial Counsel's motion to amend the charge sheet to conform to the accused's pleas]. Finding: Guilty, as amended. Specification 2: The applicant did, between on or about 1 December 2013 and on or about 2 December 2013, unlawfully touch Staff Sergeant J.D. on the breasts with his hands. Plea: Not Guilty, but Guilty of assault consummated by battery in violation of Article 128. [After pleas, but prior to findings, the Military Judge granted Trial Counsel's motion to amend the charge sheet to conform to the accused's pleas]. Finding: Guilty, as amended. Specification 3: The applicant did, on or about 12 May 2014, unlawfully spread the legs of Staff Sergeant J.D. with his hands. Plea: Not Guilty, but Guilty of assault consummated by battery in violation of Article 128. [After pleas, but prior to findings, the Military Judge granted Trial Counsel's motion to amend the charge sheet to conform to the accused's pleas]. Finding: Guilty, as amended. Specification 4: The applicant did, between on or about 1 August 2014 and on or about 30 September 2014, unlawfully kiss Staff Sergeant J.D. on the lips with his lips. Plea: Not Guilty, but Guilty of assault consummated by battery in violation of Article 128. [After pleas, but prior to findings, the Military Judge granted Trial Counsel's motion to amend the charge sheet to conform to the accused's pleas]. Finding: Guilty, as amended. Charge Ill: Article 134. Plea: Guilty. Finding: Guilty. Specification 1: The applicant did, on divers occasions between on or about 1 January 2012 and on or about 31 December 2012, wrongfully harass SFC C.P. by making deliberate and repeated offensive comments and gestures of a sexual nature, such conduct being to the prejudice of good order and discipline in the armed forces. Plea: Guilty. Finding: Guilty. Specification 2: The applicant did, on divers occasions between on or about 1 March 2013 and on or about 1 June 2013, wrongfully harass Captain D.T. by making deliberate and repeated offensive comments and gestures of a sexual nature, such conduct being to the prejudice of good order and discipline in the armed forces. Plea: Guilty. Finding: Guilty. Specification 3: The applicant did, between on or about 1 November 2013 and on or about 1 March 2014, send an unsolicited digital image of his genitalia to a female Soldier, to wit: SSG J.D., such conduct being to the prejudice of good order and discipline in the armed forces. Plea: Guilty. Finding: Guilty. Specification 4: The applicant did, between on or about 1 January 2012 and on or about 31 December 2012, send an unsolicited digital image of his genitalia to a female Soldier, to wit: SFC C.P. such conduct being to the prejudice of good order and discipline in the armed forces. Plea: Guilty. Finding: Guilty. Specification 5: The applicant did, between on or about 1 June 2013 and on or about 31 July 2013, send an unsolicited digital image of his genitalia to a female Soldier, to wit: Captain D.T., such conduct being to the prejudice of good order and discipline in the armed forces. Plea: Guilty. Finding: Guilty. (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 September 2017 / only so much of the sentence, a reduction E-1, confinement for 6 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. (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: 1 June 2018 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 October 2016 / Indefinite b. Age at Enlistment / Education / GT Score: 33 / Master's Degree / 110 c. Highest Grade Achieved / MOS / Total Service: E-6 / 74D10 8R, Chemical Operations Specialist / 19 years, 5 months, 25 days d. Prior Service / Characterizations: RA, 1 September 1998 - 30 September 2001 / HD RA, 8 April 2010 - 15 October 2012 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (9 October 2010 - 12 May 2011); Iraq (19 April 2003 - 31 July 2003; 8 June 2007 - 30 September 2008) f. Awards and Decorations: JSCM, ARCOM-2, AAM-6, AGCM-5, NDSM, GWOTEM, GWOTSM, ACM-CS, HSM, ICM-3CS, NCOPDR-3, ASR, OSR-3, MOVSM, CAB g. Performance Ratings: 2 February 2012 - 1 February 2013 / Among The Best 2 February 2013 - 1 October 2013 / Among The Best 2 October 2013 - 1 October 2014 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Personnel Action form, reflects the applicant's duty status changed from "Confined by Military Authorities (CMA)" to "Present for Duty (PDY)," effective 23 August 2017. i. Lost Time / Mode of Return: 118 days (CMA, 26 April 2017 - 22 August 2017) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his active duty medical diagnosis history, which reflects the applicant was diagnosed with: Adjustment Disorder with Depressed Mood; Anxiety Disorder, NOS; Depression; and, Panic Disorder without Agoraphobia. The applicant provided a copy of his VA disability rating decision, dated 30 August 2019, which reflects the applicant was rated 30 percent disability for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; VA Rating Decision; DD Form 214; medical treatment and dental records. 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 general (under honorable conditions) or under other than 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 he was suffering from PTSD, which affect his ability to make sound decisions. The applicant contends the VA has granted him a service connected disability 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. 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 23 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 AR20190013129 1