1. Applicant's Name: a. Application Date: 25 October 2019 b. Date Received: 4 November 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is a bad conduct discharge. The applicant requests an upgrade to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, mental health struggles were not considered during the separation and the applicant attempted to receive care. The disciplinary issues and incidents, specifically with alcohol, was a direct result of post-traumatic stress disorder (PTSD) and other mental health conditions related to combat deployment. If the applicant had been supported by the chain of command to receive treatment, there would have been an honorable or medical discharge. The VA decision strongly supports the request for an upgrade. b. Board Type and Decision: In a records review conducted on 10 August 2022, and by a 3 - 2 vote, the Board determined that the characterization of service was inequitable based on the applicant's circumstances surrounding the discharge (OBHI and PTSD diagnoses). Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General Under Honorable Conditions. Please see Section 9 of this document for more detail regarding the Board's decision. (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: 13 March 2015 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 7, dated 16 June 2014, the applicant pled guilty and was found guilty of failing to go at the prescribed time to the appointed place of duty on or about 20 April 2012; violating a general regulation by wrongfully maintaining a relationship with PFC N.B.; wrongfully giving alcohol to a person under the age of 21; being drunk while on duty as a Soldier at PT formation; behaving with disrespect towards MAJ F.L., a superior officer; drinking alcohol with two junior Soldiers and being naked in the presence of the Soldiers; and making a false official statement. (2) Adjudged Sentence: Reduction to the grade of private/E-1, forfeiture of $994 pay per month for 3 months; confinement for 3 months; and discharge from the service with a Bad- Conduct Discharge. (3) Date/Sentence Approved: 3 December 2012, except for that portion of the sentence pertaining to a Bad-Conduct Discharge, will be executed. (4) Appellate Reviews: NIF (5) Date Sentence of BCD Ordered Executed: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 July 2007 / 5 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 118 c. Highest Grade Achieved / MOS / Total Service: E-5 / 25U10, Signal Support System Specialist / 11 years, 10 month, 10 days d. Prior Service / Characterizations: ARNG, 31 January 2003 - 21 September 2005 / HD RA, 16 August 2004 - 17 December 2004 / HD (Concurrent Service) (IADT) RA, 22 September 2005 - 3 July 2003 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (15 August 2006 - 1 November 2007) f. Awards and Decorations: ARCOM, AAM-2, AGCM-2, NDSM, GWOTSM, KDSM, ICM- CS, NCOPDR, ASR, OSR-2, Gold Recruiter Badge-Three Star Sapphires, Silver Basic Recruiter Badge-Three Gold Achievement Stars g. Performance Ratings: 1 March 2008 - 30 June 2009 / Fully Capable 1 July 2009 - 5 February 2010 / Marginal 6 February 2010 - 5 February 2011 / Fully Capable 6 February 2011 - 30 August 2011 / Fully Capable 31 August 2011 - 30 August 2012 / Marginal h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 4 January 2010, reflects the applicant violated a lawful general order on or about 14 September 2009, by wrongfully using a government vehicle for personal use; disobeyed a lawful general order between on or about 1 September 2009 and 14 September 2009 by having an unauthorized relationship with a prospect; and driving a government vehicle in a reckless manner by driving 80-mph in a 45-mph zone. The punishment consisted of reduction to specialist/E-4, suspended, to be automatically remitted if not vacated before 3 July 2010 and forfeiture of $500 pay per month for 2 months. See Special Court-Martial Order as described in paragraph 3c(1). i. Lost Time / Mode of Return: Military Confinement X 72 days (3 December 2012 - 13 February 2013) j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provides a letter from the VA which reflects there was evidence that insanity was a factor at the time the applicant committed the offenses leading to the bad conduct discharge. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Letter from the Department of Veteran Affairs, dated 16 October 2019 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides 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), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides 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, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification 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. (2) 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. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable or general (under honorable conditions). 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 the mental health struggles were not considered during the separation and the applicant attempted to receive care. The applicant's AMHRR is void of a mental status evaluation. The applicant contends the disciplinary issues and incidents, specifically with alcohol, was a direct result of PTSD and other mental health conditions related to combat deployment. The applicant's AMHRR is void of a PTSD or any other mental diagnosis. The applicant provides a letter from the VA which reflects there was evidence that insanity was a factor at the time the applicant committed the offenses leading to the bad conduct discharge. The applicant contends if there had been support by the chain of command to receive treatment, there would have been an honorable or medical discharge. Army Regulation 600-85, paragraph 3-8 entitled self-referrals, states Soldiers may self-refer to the Army Substance Abuse Program counseling center for assistance and the Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. The applicant contends the VA decision strongly supports the request for an upgrade. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: PTSD (70% SC), TBI (0% SC), Anxiety DO NOS. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed with Anxiety DO NOS, TBI, PTSD while in service. Also, the VA has service connected his PTSD (70%) and TBI (0%). (3) Does the condition or experience excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant has two BH conditions, PTSD and TBI, which mitigate some of his misconduct. As there is an association between PTSD/TBI and avoidant behaviors, there is a nexus between these diagnoses and applicant' s history of Failure to Report. As there is an association between these two BH conditions and the use of alcohol to self-medicate symptoms, there is a nexus between these conditions and the applicant's offense of reporting to PT in an intoxicated state. As there is an association between PTSD/TBI and problems with authority figures, there is a nexus between these conditions and the applicant's offense of being disrespectful towards a superior officer. PTSD and TBI do not, however, mitigate the offenses of giving alcohol to a minor, drinking with junior enlisted soldiers, being naked in front of said soldiers, engaging in an inappropriate relationship and/or making a false official statement. None of these offenses are mitigated given that PTSD and Mild TBI do not affect one's ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. The Board considered the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's condition partially outweighs the avoidant behaviors, FTRs, the use of alcohol to self-medicate symptoms, reporting to PT intoxicated, and problems with authority figures. However, the applicant's condition did not mitigate giving alcohol to a minor, drinking with junior enlisted soldiers, being naked in front of said Soldiers, engaging in an inappropriate relationship and/or making a false official statement misconduct. b. Response to Contention(s): (1) The applicant contends the mental health struggles were not considered during the separation and the applicant attempted to receive care. The Board determined this contention was valid after review of the applicant's DOD and VA health records. It revealed the applicant was diagnosed with PTSD, TBI and Anxiety DO NOS which medically mitigated avoidant behaviors, FTRs, the use of alcohol to self-medicate symptoms, reporting to PT intoxicated, and problems with authority figures. However, the misconduct of giving alcohol to a minor, drinking with junior enlisted soldiers, being naked in front of said Soldiers, engaging in an inappropriate relationship and/or making a false official statement was not mitigated. Therefore, the applicant was granted partial relief. (2) The applicant contends if there had been support by the chain of command to receive treatment, there would have been an honorable or medical discharge. The Board considered this contention and determined the applicant did not provide supporting documentation to provide merit to the claim. Ultimately, the Board decided that the assertion alone did not outweigh the basis of separation due to the severity of the offenses and found no evidence of the Command acting arbitrarily or capriciously. (3) The applicant contends the VA decision strongly supports the request for an upgrade. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board determined that based on partial medical mitigation partial relief was granted. c. The Board determined the Board determined that the characterization of service was inequitable based on the applicant's circumstances surrounding the discharge (OBHI and PTSD diagnoses). Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General Under Honorable Conditions. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General Under Honorable Conditions because the applicant had BH conditions which partially mitigated the applicant's misconduct of avoidant behaviors, FTRs, the use of alcohol to self-medicate symptoms, reporting to PT intoxicated, and problems with authority figures. Thus, the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190014512 1