1. Applicant's Name: a. Application Date: 30 December 2019 b. Date Received: 5 February 2020 c. Counsel: 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, the applicant is suffering from depression and post-traumatic stress disorder (PTSD) due to combat experiences. The applicant was never treated for PTSD and is still suffering from PTSD and other mental problems. The applicant needs help and can't get it because of the discharge. The applicant served honorably, including a combat tour. The applicant went AWOL to care for a spouse after losing a child. b. Board Type and Decision: In a telephonic personal appearance conducted on 6 March 2023, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, and applicant's experience with homelessness mitigating the discharge. Accordingly, the Board voted to grant partial relief in the form of an upgrade to the characterization of service to Under Other Than Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. Please see Section 10 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: 23 January 2015 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 18, dated 14 November 2013, the applicant was found guilty of the following charge: The Charge: Violations of Article 86, UCMJ, for being absent without leave on 25 May 2006, and remained absent until 15 February 2007; being absent without leave on 20 February 2007 and remained absent until when he was apprehended on 6 April 2012. (2) Adjudged Sentence and Date: To be confined for six months, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 24 September 2012. (3) Date Sentence Approved: On 14 November 2013, only so much of the sentence extending to reduction to E-1 and confinement for two months, except for that part of the sentence extending to a Bad Conduct Discharge, would be executed. (4) Appellate Reviews: NIF (5) Date Sentence of BCD Ordered Executed: NIF, However, in accordance with AR 635-200, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. A Special Court-Martial Order would have affirmed the promulgated findings of SPCM Order No.18, dated 14 November 2013, and further ordered the execution of the Bad Conduct Discharge. 4. SERVICE DETAILS: a. Date / Period of Enlistment: A subsequent reenlistment contract is NIF / NIF (His ERB indicates an ETS date of 1 January 2010.) b. Age at Enlistment / Education / GT Score: 26 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92F10, Petroleum Supply Specialist / 9 years, 1 month, 22 days (includes excess leave for 774 days from 11 December 2012 to 23 January 2015, creditable for all purposes except pay and allowances) d. Prior Service / Characterizations: USAR (2 December 1999 to 3 November 2002) / NA RA (4 November 2002, for three years and a subsequent reenlistment contract is NIF) e. Overseas Service / Combat Service: NIF / NIF (Note his NCOER on file indicate the applicant served in Iraq.) f. Awards and Decorations: ARCOM; AAM-2; NDSM; GWOTSM; ASR g. Performance Ratings: One NCOER for period January 2005 thru May 2005, Among the Best (as associated to the applicant claim of having served in Iraq, for "Responsibility & Accountability," the evaluation contains comments that the applicant "submitted unblemished aviation fuel samples upon entering Iraq enabling the MEDEVAC Aircraft to fly mission safe," and "challenged the applicant Soldiers to be safety conscious, thereby eliminating any accidents during deployment." h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order No. 18, dated 14 November 2013, described at paragraphs 3c(1) to (3). Report of Return of Absentee, dated 6 April 2012, indicates the applicant was apprehended by civil authorities on 6 April 2012, at Nolanville, Texas, and returned to military control. Two memoranda, dated 7 June 2012, subject: Disqualification for the Army Good Conduct Medal, indicate the applicant was disqualified from receiving the AGCM awards for period 14 June 2005 to 14 June 2008, and 14 June 2008 to 14 June 2011, due to his AWOL statuses. DA Form 4187, Personnel Action, dated 2 October 2012, indicates the applicant's duty status changed from PDY to Confinement by Military Authorities (CMA), effective 29 September 2012, with a remark that the applicant was "confined as a result of a court-martial." i. Lost Time / Mode of Return: 2,293 days (AWOL from 25 May 2005 to 5 April 2012, for 2,243 days, and CMA from 19 September 2012 to 7 November 2012, for 50 days) / The applicant was apprehended by civil authorities and returned to military control. The latter period, the applicant was released after serving a court-martial sentence. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, personal statement, letters of support, medical records, DD Form 214, documents from applicant's AMHRR 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. 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), the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to 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 applicant is suffering from depression and PTSD due to combat experiences and has never been treated for PTSD and is still suffering from PTSD and other mental problems. The applicant needs help and can't get it because of the discharge. The applicant's AMHRR is void of a mental status evaluation or a PTSD diagnosis. The applicant served honorably, including a combat tour. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. The applicant went AWOL to care for a spouse after losing a child. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A. b. The applicant presented the following additional contention(s): Applicant, character witness, and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): 10. 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 that the applicant has the following potentially-mitigating diagnoses: The applicant holds post- service, non-service connected diagnoses of Adjustment Disorder, Alcohol Use Disorder, and Cannabis Use Disorder. The applicant asserts PTSD, although providers have assessed and determined the applicant did not have this condition. (2) Did the condition exist or experience occur during military service? Yes. Solely the applicant's assertion of PTSD and Depression in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that even if there Is liberal consideration of the applicant's non-service connected Adjustment Disorder, an Adjustment Disorder is a low level, temporary difficulty adjusting or coping with psychosocial stressors that do not impair cognitive abilities; the diagnosis would not impact ability to know right from wrong and understand the consequences. In terms of the applicant's asserted PTSD, multiple providers have assessed and determined the applicant does not have this or ANY service- connected condition. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that though the Board's Medical Advisor determined there was partial mitigation, the available evidence did not support a conclusion that the applicant's PTSD, Depression, or non-service connected BH conditions outweighed the basis for applicant's separation - AWOL- for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the applicant is suffering from depression and PTSD due to combat experiences and has never been treated for PTSD and is still suffering from PTSD and other mental problems. The applicant needs help and can't get it because of the discharge. The Board considered this contention and the applicant's assertion of PTSD, however the Board determined that there is insufficient evidence of said diagnoses in official or medical records, and the applicant did not provide supporting documentation by a qualified medical professional to provide merit to the claim. Ultimately, the Board determined that the assertion alone did not outweigh the basis of separation. However, based on the applicant's length and quality of service, to include combat service, and applicant's experience with homelessness, the Board voted to grant a partial upgrade of the characterization of service to Under Other Than Honorable Conditions. The Board found an upgrade to Honorable not supported by the evidence of record. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, given the nature of the misconduct, was not sufficiently meritorious to warrant an honorable discharge. (2) The applicant served honorably, including a combat tour. The Board considered this contention and determined that the applicant's length and quality of service, to include combat service, and the applicant's experience with homelessness warranted a partial upgrade of the applicant's characterization of service. (3) The applicant went AWOL to care for a spouse after losing a child. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with family issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant's AWOL is not an acceptable response to dealing with family issues, thus this contention does not outweigh the applicant's discharge. However the Board voted to partially upgrade the applicant's characterization of service based on the applicant's length and quality of service, to include combat service, and the applicant's experience with homelessness. c. The Board determined the applicant's length and quality of service, to include combat service, and applicant's experience with homelessness mitigates the discharge and as such partial relief is warranted. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Under Other Than Honorable Conditions because the applicant's PTSD mitigated the applicant's AWOL misconduct. Thus, the prior characterization is no longer appropriate. The Board found an upgrade to Honorable not supported by the evidence of record. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, given the nature of the misconduct, was not sufficiently meritorious to warrant an honorable discharge. (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. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Under Other Than 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 AR20200003402 1