1. Applicant's Name: a. Application Date: 13 June 2019 b. Date Received: 26 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 bad conduct. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant strongly disagrees with the last unfair character of the discharge and served the country honorably in two 15-month tours in Iraq combat zones. In these two tours the applicant suffered injuries from explosions and combat action earning a Combat Action Badge, not to mention PTSD. The Bad Conduct character does not reflect what the applicant did for the country and would like for the board to review and reconsider the character of the discharge and upgrade it to honorable. This will allow the applicant to receive treatment at the VA for PTSD. When the applicant was on terminal leave, the applicant was recalled to go back because the applicant was re-deploying for the third time, which the applicant thought was unfair because the applicant had served honorably and proudly. At the time the applicant was waiting for the second child and did not want to miss it and was afraid of not coming back from the third deployment like some of the applicant's battle buddies that did not make it in prior deployments. The applicant humbly asks for the board to take this statement into consideration and upgrade the character of discharge. b. Board Type and Decision: In a records review conducted on 31 August 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (TBI/ PTSD diagnoses) mitigating the applicant's AWOL. 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, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. 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: 29 March 2013 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 38, dated 8 June 2012, on 29 November 2011 the applicant was found guilty of; with intent to avoid hazardous duty, namely, deployment to Iraq, the applicant quit the unit on 2 February 2009, and did remain so absent in desertion until on or about 27 June 2011. (2) Adjudged Sentence: On 29 November 2011, the applicant was sentenced to be reduced to the grade of E-1, to be confined for seven (7) months, and to be discharged from the service with a bad-conduct discharge. (3) Date/Sentence Approved: Only so much of the sentence extending to reduction to the grade of Private (E-1), confinement for 4 months, and a Bad Conduct Discharge, is proved, and except for the portion of the sentence extending to a bad-conduct discharge, will be executed. The portion of the sentence extending to confinement had already been served. (4) Appellate Reviews: NIF (5) Date Sentence of BCD Ordered Executed: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 December 2004 / 4 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-5 / 12B10, Combat Engineer / 8 years, 9 months, 19 days d. Prior Service / Characterizations: RA, 11 October 2001 to 18 December 2004 / HD e. Overseas Service / Combat Service: SWA / Iraq (30 October 2006 to 16 January 2008) f. Awards and Decorations: ARCOM-2, AAM-3, AGCM-2, GWOTEM, GWOTSM, ICM- CS, NCOPDR, ASR, OSR, CAB g. Performance Ratings: 1 July 2007 to 30 June 2008, Among the Best h. Disciplinary Action(s) / Evidentiary Record: Special Court Martial Order as described in previous paragraph 3c Present for Duty to Confined by Military Authorities, effective 29 November 2011 Confined by Military Authorities to Present for Duty, effective 4 March 2012 i. Lost Time / Mode of Return: Total lost time 971 days; Absent Without Leave, for 875 days (2 February 2009 to 26 June 2011) / mode of return unknown and Confinement Military Authority 96 days (29 November 2011 to 3 March 2012) punishment received from Special Court Martial. The DD Form214 under review refers to 378 days of excess leave (17 March 2012 to 29 March 2013). j. Diagnosed PTSD / TBI / Behavioral Health: NIF: however, a letter from the Department of Veterans Affairs, indicates the applicant has been awarded 70 percent service- connected disability for Post-Traumatic Stress Disorder (PTSD). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214 for the period of service under review, and a letter from the Department of Veterans Affairs, dated 19 May 2020. 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. e. 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. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1 defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant Army Military Human Resource Record (AMHRR) of service indicates Special Court-Martial action were initiated against the applicant for having been absent from the unit, on or about 2 February 2009 and remaining so absent in desertion until on or about 27 June 2011. The AMHRR service record indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. It should be noted 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, in effect, the applicant strongly disagrees with the last unfair character of the discharge and served the country honorably in two 15-month tours in Iraq combat zones. In these two tours the applicant suffered injuries from explosions and combat action earning a Combat Action Badge, not to mention PTSD. The Bad Conduct character does not reflect what the applicant did for the country and would like for the board to review and reconsider the character of the discharge and upgrade it to honorable. This will allow the applicant to receive treatment at the VA for PTSD. When the applicant was on terminal leave, the applicant was recalled to go back because the applicant was re-deploying for the third time, which the applicant thought was unfair because the applicant had served honorably and proudly. At the time the applicant was waiting for the second child and did not want to miss it and was afraid of not coming back from the third deployment like some of the applicant's battle buddies that did not make it in prior deployments. The applicant humbly asks for the board to take this statement into consideration and upgrade the character of discharge. The applicant contends and strongly disagrees with the last unfair character of the discharge and served the country honorably in two 15-month tours in Iraq combat zones. The board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends in the two tours to Iraq, the applicant suffered injuries from explosions and combat action earning a Combat Action Badge, not to mention PTSD. It should be noted, a letter from the Department of Veterans Affairs, indicates the applicant has been awarded a 70 percent service-connected disability for Post-Traumatic Stress Disorder (PTSD). The applicant contends that an upgrade would allow the applicant to receive treatment at the VA for PTSD. Eligibility for veteran's benefits to include medical and educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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: TBI from IED blast; combat-related PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found military medical records document the TBI event. VA records indicate that the diagnosis of PTSD has been linked to military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has two mitigating BH conditions, PTSD due to combat and TBI. As there is an association between PTSD/TBI and avoidant behaviors, there is a nexus between these conditions and the applicant's offense of being AWOL. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with 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 PTSD/TBI outweighed the AWOL basis for separation. b. Response to Contention(s): (1) The applicant contends the last unfair characterization of discharge doesn't take into consideration the applicant's length and quality of service, to include combat service, and PTSD. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD/TBI mitigating the applicant's AWOL charges. (2) The applicant contends family circumstances caused the applicant to go AWOL instead of deploying again. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD/TBI fully outweighing the applicant's AWOL basis for separation. c. The Board determined the discharge is inequitable based on the circumstances surrounding the discharge (TBI/ PTSD diagnoses) mitigating the applicant's AWOL. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD mitigated the applicant's AWOL. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Secretarial Authority under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFF. (3) The RE code will not change, as the current code reflects the applicant's mitigating diagnoses are also service-limiting. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / JFF d. Change RE Code to: No Change e. Change Authority to: AR 635-200, Chapter 15 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 AR20200001625 1