1. Applicant's Name: a. Application Date: 23 October 2019 b. Date Received: 28 October 2019 c. Previous Records Review: AR20090021391, 18 August 2010 (Reconsideration based on current liberal consideration guidance) d. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade his bad conduct discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, that VA has granted him a rating of 50 percent disability for PTSD, and that a VA medical doctor found a lesion on his brain (TBI, but unsure of the area he was injured overseas). He served in OIF where he was diagnosed with TBI as reflected on his medical record that can be obtained through Veterans Association. The applicant also related on his appeal and whether his rank of E-4 was restored. He also referred to his military service and ARCOM resulting from his unit capturing "over 100 H.V.T." 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. The applicant is 50% service-connected from the VA. The VA has also diagnosed the applicant with Tremor; Seizures; Cannabis Dependence with intoxication; Psychosis NOS; TBI with LOC; Major Depressive Disorder w/o psychosis. 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 (PTSD, OBHI, and TBI diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. (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: 19 September 2008 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 30, dated 20 October 2006, the applicant was found guilty of the following charges: The Charge: two specifications of violating Article 86, UCMJ: Specification 1: for absenting himself without authority from his unit on 27 January 2005, and remained absent until 16 August 2005. Specification 2: for absenting himself without authority from his unit on 9 November 2005, and remained absent until 12 January 2006. (2) Adjudged Sentence and Date: To forfeit $785 per month for five months, to be confined for five months, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 16 March 2006. (3) Date Sentence Approved: On 20 October 2006, the sentence was approved, and except for that part of the sentence extending to a Bad Conduct Discharge, would be executed. (4) Appellate Reviews: According to United States Army Court of Criminal Appeals Decision, dated 28 December 2007, the findings of guilty and the sentence were affirmed, and Special Court-Martial Order Number 79, dated 22 May 2008, announcing the promulgated findings and sentence of SPCM Order No. 30, dated 20 October 2006, having finally been affirmed, ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 22 May 2008 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 April 1998 / 3 years (any extension or reenlistment that followed NIF) b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 107 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 10 years, 5 months, 15 days (includes 876 days of excess leave from 28 April 2006 to 19 September 2008, creditable for all purposes, except pay and allowance) d. Prior Service / Characterizations: ARNG (26 March 1997 to 6 May 1997) / NA IADT (7 May 1997 to 15 June 1997) / HD ARNG (16 June 1997 to 2 April 1998) / NIF e. Overseas Service / Combat Service: SWA / Unknown location of serving in an imminent danger pay area and exact dates, but on or before 10 April 2003, to on or after 1 October 2003) (CIB for period 10 April 2003 until 1 October 2003, per Permanent Orders 271-112, dated 28 September 2003, issued by Combined Joint Special Operations Task Force, Arabian Peninsula, APO AE 09335) f. Awards and Decorations: NDSM; ASR; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Orders Number 30, dated 20 October 2006, and Number 79, dated 22 May 2008, and the United States Army Court of Criminal Appeals Decision, dated 28 December 2007, described at the preceding paragraphs 3c(1) thru (5). i. Lost Time / Mode of Return: 372 days (AWOL on two separate occasions on 27 January 2005 to 16 August 2005, for 202 days, and on 9 November 2005 to 11 January 2006, for 64 days, and military confinement on 12 January 2006 to 27 April 2006, for 106 days) / Unknown mode of return on initial AWOL period; second AWOL period, the applicant was apprehended by civil authorities on 12 January 2006, and returned to military control; and the latter period of time loss, the applicant was released from military confinement upon completing his court-martial sentence of confinement. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 23 October 2019, and DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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 imposed. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial (Other). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JJD" will be assigned an RE Code of 4. 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 to upgrade his bad conduct discharge to honorable. The applicant's available record of service, and the issues and document submitted with his application were carefully reviewed. The record confirms there was full consideration of all faithful and honorable service, as well as, the misconduct incidents. 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 Army Discharge Review Board (ADRB) 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. 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 the charge 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. The applicant contends he was suffering from behavioral health issues and a subsequent diagnosis with PTSD. His contentions were carefully considered. However, a careful review of the applicant's record does not provide any behavioral health diagnoses and the applicant did not provide any documentary evidence of any behavioral health diagnoses by a competent medical authority. However, based on any medical record available to the Board, and if the Board determines, based on the available applicant's behavioral health diagnoses that the behavioral issues were significant contributing factors to his misconduct, it can grant appropriate clemency by changing the characterization of service. However, if there are no medical records available to the Board and if the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., any behavioral health/PTSD diagnoses) for the Board's consideration because they are not available in the official record. The applicant referenced restoration of rank and an ARCOM. However, the applicant's reference to any changes to the DD Form 214 do not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR) with documentary evidence of his request, using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The available record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Based on the available record, 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 (PTSD, OBHI, and TBI diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable 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 AR20200000717 5