1. Applicant's Name: a. Application Date: 21 October 2019 b. Date Received: 22 October 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to honorable or a general (under honorable conditions). The applicant seeks relief contending, in effect, the applicant is proud to say he is a combat veteran from a military family, but he is disheartened by the way his military career ended. In 2002, it was determined the applicant had developed a hernia, and as he was figuring out a course of action, he also found out he would be deploying to Kuwait in route to Iraq in 2003. The applicant's surgery was in November and afterwards he believed all went well and continued to Soldier on and deployed to Kuwait with his unit January. The applicant had some pain, mostly numbness, and an occasional loss of bladder control, and he was nervous, but he was reassured that it was all normal on the road to recovery. The applicant soldiered on and six to eight months into his deployment the problems persisted. While in Kuwait, an NCO told the applicant that if they were in a foxhole together, the NCO might kill the applicant. The NCO's reasoning was he did not know anything about the applicant and the applicant never went out. At that point, with the thought of war on his mind, and believing he had to watch his own back along with dealing with his injury. The applicant was justifiably worried and very frustrated. The applicant states, along with the bumps and bruises of war, he knows all life is precious and believed in live and let live and kill or be killed. The applicant will never be able to forget the smell of a corpse that had been singed by a heat round and had been in the desert heat all day. The applicant states he lost a great first sergeant and had a bullet pass so close to his face he heard and felt the wind on his face. Later, the applicant was told his profile did not matter and that if the applicant planned to go home with the main body, he would have to do a PT test or he would be left for the last flights leaving Kuwait. The applicant states that returning to the states seemed harder and more stressful than being overseas, but often believed the next time he went he would return in a body bag. Citizens said they were murderers, and killers, which was a bit much to hear. Upon his return to the states, it was discovered he sustained left inguinal nerve damage from his hernia surgery. The determination was that too much time had passed between the damage and a possible repair would not be guaranteed. The chances were 40 to 60 percent that it would stay the same or get worse versus getting better and a 30 percent chance he would lose a testicle. The applicant declined the surgery and while speaking with the doctor, the applicant was informed he had another hernia, which the applicant eventually had removed in 2018. In 2003, the applicant started the MED Board process for the nerve damage in his leg. The applicant started marriage counseling with his wife and he began getting some counseling for his PTSD in 2004. The applicant inquired about switching his MOS so he could keep his military career, but he was informed that since he could not perform two parts of the PT test the applicant was of no use to the military. The applicant states, those words stung more than almost any and he believed as if it shattered his heart or mind, or even a bit of both. The applicant was in a bad way and had split up with his wife and then he was losing his career and his family. The applicant states it was not an excuse, but he started using marijuana and drinking heavily. He went from a promising beginning, to a troubled end in what seemed like an instant. The applicant turned himself into ADAPC, and was informed should be very honest with his behavioral health counselor. Before his deployment, the applicant on had a single negative counseling for having his combats boots shined like jump boots. Afterwards he started to melt down from the inside and he became overwhelmed with everything including life. It was a constant struggle and still continues some days. During that time, he felt uncontrollably uncomfortable in his own skin, and let the pain and the turmoil take over his life, until he tried to take his own life and felt lost, almost as if he were living in limbo. The applicant finished out-processing and then had no family, no car and no military career, which was all he had ever wanted. At 22, his life was abruptly altered, along with his perceptions of reality. He believed everything including his sanity, had been snatched in a blink of an eye. He went from an E-4 squad leader to a completely broken Soldier was a big difference. The applicant had been prescribed numerous medications as his lack of judgment and mental state deteriorated. He states, it was a perfect storm for him to transform into a soup sandwich and was diagnosed with PTSD, manic depressive and in a state of major depression. The applicant does not blame his short comings on the military and does not make excuses. He accepts responsibility for his transgressions and prays that the military will as well. The applicant does not believe blaming the military for everything that happened, but the actions of the military could be considered the catalyst. Before any administrative actions or problems ever occurred, he had the botched surgery resulting in nerve damage. Further compounding the situation was the time between his diagnosis and treatment and his deteriorated mental state. 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 Chronic PTSD; Depression. The applicant is not service-connected from the VA. In summary, the applicant has 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 30 September 2020, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (service-connected PTSD diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority with a corresponding separation code to JFF. (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: 31 August 2007 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 4, dated 17 March 2006, on 4 August 2006, the applicant was found guilty of the following: Charge I: Article 86. The Specification: On or about 27 January 2005, without authority, absented himself from his unit, to wit: Co F, 2-69th AR (Rear), 313d ID, located at Ft Benning, GA, and remained so absent until on or about 26 March 2005. Plea: Guilty. Finding: Guilty. Charge II: Article 87. The Specification: On or about 28 January 2005, through design, missed the movement of Co F, 2-69th AR (Rear), 313d ID, located at Fort Benning, Georgia, with which the accused was required in the course of duty to move. Plea: Guilty. Finding: Guilty. Charge III: A11icle 12a: Specification 1: At or near Ft Benning, GA, on or about 26 March 2005, wrongfully possessed an unknown quantity of Marijuana. Plea: Not Guilty. Finding: Dismissed on motion of the trial counsel after arraignment and entry of plea. Specification 2: At or near Ft Benning, GA, between on or about 19 March 2005 and on or about 6 April 2005, wrongfully used Marijuana. Plea: Guilty. Finding: Guilty. Specification 3: At or near Ft Benning, GA, between on or about 29 April 2005 and on or about 16 May 2005, wrongfully used Marijuana. 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: 17 March 2006 / Only so much of the sentence as provides for reduction to Private (E-1), confinement for six (6) months, and a Bad-Conduct Discharge is approved and, except for that part of the sentence extending to a Bad-Conduct Discharge, would be executed. The automatic forfeiture of $823.00 pay per month, as required by Article 58b, UCMJ, was waived effective 18 August 2005, until 17 February 2006, with direction that these funds be paid to the wife of the accused, Mrs. J. P. The applicant was credited with 37 days of confinement against 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: 27 April 2007 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 January 2002 / 4 years / The applicant was retained in service 386 days for the convenience of Government. b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-4 / 63J10, QM & Chemical Equipment Repairer / 5 years, 20 days / d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: NIF f. Awards and Decorations: NDSM, 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 28 June 2005; and, From "CMA" to "PDY," effective 23 November 2005 i. Lost Time / Mode of Return: 204 days AWOL, 27 January 2005 - 25 March 2005 / NIF CMA, 28 June 2005 - 22 November 2005 / NIF j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided copies of his post- service medical treatment records, which reflects the applicant had been treated for: PTSD; Manic-depression. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; three third party statements; Jackson County Memorial Hospital Short Stay History; Veteran Information Profile Report; Physician Recommendation Form; medical treatment 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 honorable or a general (under 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 affected his behavior and led to his discharge. The applicant provides evidence that he was treated for PTSD post-service. 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 applicant contends he had a botched surgery and was not properly treated, which affected his behavior; however, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. 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 third party statements provided with the application speak highly of the applicant and support his contentions regarding his in-service trauma; 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 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 30 September 2020, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (service-connected PTSD diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority with a corresponding separation code to JFF. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / 1 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 AR20190015137 5