1. Applicant's Name: a. Application Date: 2 February 2020 b. Date Received: 10 February 2020 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 discharge. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, PTSD was a struggle after completing the second deployment to Iraq from September 2007 to December 2008. The applicant tried to keep the issues hidden from other Soldiers and the unit because the applicant did not want to appear as a weak link in the chain. The applicant deployed again for one year to Kuwait April 2010-March 2011 in support of Iraqi Freedom/New Dawn. During that time, the applicant was deployed with spouse. The applicant served as the PSD NCOIC in charge of the security of the Battalion Commander and Command Sergeant Major. The applicant's spouse was also on that PSD. They had two children at the time. The stresses of the deployment, to include the depression associated with pervious deployments took a toll on the applicant personally and professionally. The applicant states they were divorced not long after returning from the deployment. March of 2011 the applicant returned to Fort Bragg at the end of the deployment. In August of 2011 the applicant participated in an Airborne Operation at Camp Mackall, NC after being off Airborne status for two years. On that jump, the applicant hit his head and reported to the unit medical personnel to complain of issues focusing and staying alert, but medical personnel did not request an MRI. July of 2012, the applicant reported to Fort Lee, VA as an ALC instructor for his MOS. The applicant requested help for issues with his head and PTSD, was looked at as if the applicant was malingering due to the workload at the NCO Academy. The applicant continued to train Soldiers and lead from the front as required but allowed mental issues to take control. The applicant states it was never the intent to desert from his post and remain away for the length of time that he did. The applicant regrets the actions every single day. The applicant is currently enrolled in a Behavioral health program and continues to seek treatment for the issues. b. Board Type and Decision: In a records review conducted on 3 March 2023, and by a 5-0 vote, the Board determined the discharge is inequitable and clemency was warranted based on the applicant's Generalized Idiopathic Epilepsy fully mitigating the applicant's AWOL and drug use. Therefore, the Board directed the issue of a new DD Form 214 changing 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: 13 July 2016 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 1, dated 18 February 2016, on 22 December 2015, the applicant was found guilty of the following: Charge I, in violation of Article 85. Plea: Not Guilty, but Guilty of violation of Article 86, absence without leave terminated by apprehension. Finding: Not Guilty, but Guilty of a violation of Article 86, absence without leave terminated by apprehension. Specification: In that the applicant did, on or about 6 February 2015, without authority and with intent to remain away therefrom permanently, absent himself from the unit, to wit: Noncommissioned Officers Academy, Army Logistics University, and did remain so absent in desertion until the applicant was apprehended on or about 24 September 2015. Plea: Guilty, except the words, "and with intent to remain away therefrom permanently" and "desertion." To the excepted words: Not Guilty. Finding: Guilty, except of the words "and with intent to remain away therefrom permanently" and "in desertion." Of the excepted words: Not Guilty. Charge II, in violation of Article 112a. Plea: Guilty. Finding: Guilty. Specification: In that the applicant did, at or near Marine Corps Base Hawaii, Kaneohe Bay, between on or about 29 August 2015 and on or about 28 September 2015, wrongfully use marijuana. Plea: Guilty. Finding: Guilty. (2) Adjudged Sentence: Reduction to E-1; to be confined for four months, and to be discharged from the service with a Bad Conduct discharge. (3) Date / Sentence Approved: 22 December 2015 / the sentence was approved and, except for the part of the sentence extending to a bad-conduct discharge, will be executed. The applicant was credited with 4 days of confinement towards 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: 18 February 2016 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 January 2014 / Indefinite b. Age at Enlistment / Education / GT Score: 33 / Associates Degree / 113 c. Highest Grade Achieved / MOS / Total Service: E-6 / 91B10, Wheeled Vehicle Mechanic / 16 years, 2 months, 4 days d. Prior Service / Characterizations: USAR, 2 April 1999 - 21 August 2003 / HD ARNG, 22 August 2003 - 14 October 2004 / GD USARCG (AT) 15 October 2004 - 14 February 2006 RA, 15 February 2006 - 10 October 2008 / HD RA, 11 October 2008 - 13 January 2014 / HD (Concurrent Service) e. Overseas Service / Combat Service: Kuwait, SWA / Iraq (23 December 2004 - 23 December 2005), Iraq (20 September 2007 - 14 December 2008) f. Awards and Decorations: ARCOM-2, AAM-4, GCM-4, NDSM-2, GWOTEM, GWOTSM, ICM-CS2, NCOPDR-2, ASR-3, OSR-3, CAB g. Performance Ratings: 14 January 2014 - 30 July 2014 / Among the Best h. Disciplinary Action(s) / Evidentiary Record: One Developmental Counseling Form, issuing a No Contact Order. FG Article 15, dated 4 December 2010, for unlawfully striking SGT. I. on the face and arms with his hands on 5 October 2010. The punishment consisted of a reduction to E-5, suspended, to be automatically remitted if not vacated before 2 June 2011; forfeiture of $700.00, suspended; to be automatically remitted if not vacated before 2 June 2011; extra duty for 7 days. Five Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 6 February 2015, From "AWOL" to "Dropped From Rolls (DFR)," effective 8 March 2015. From "Confined by Military Authorities (CMA)" to "Present for Duty (PDY)," effective 27 September 2015. From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)" effective 22 December 2015, From "Confined by Military Authorities (CMA)" to "Present for Duty (PDY)," effective 26 March 2016. Charge Sheet, dated 9 March 2015, reflects the applicant was charged with: violation of the UCMJ, Article 85, for without authority absent from the unit in desertion (8 March 2015); and, violation of the UCMJ, Article 86, for without authority absent from the unit (6 February 2015). i. Lost Time / Mode of Return: 10 months, 2 weeks, 8 days: AWOL, 6 February 2015 - 25 September 2015 / Apprehended by Military Police CMA, 22 December 2015 - 25 March 2016 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a letter from the doctor at JCMC, dated 25 January 2020, showing the applicant is currently a patient under care for treatment of PTSD, GAD, and PDD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; two third-party letters; Doctors letter from Jacksonville Children's Multispecialty Clinic (JCMC); copies of military personnel records; Enlisted Records Brief; DD Form 214. 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 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing SJA. (4) 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 general (under honorable conditions). The applicant's Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant's AMHRR 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, in effect, suffered from PTSD and depression. The applicant's AMHRR contains no documentation of a PTSD diagnosis. The applicant did submit a doctor's letter dated 25 January 2020, that reflects the applicant is under the care of a medical professional for PTSD, GAD, and PDD, along with the applicant's statement, to support the contention the discharge resulted from a medical condition. The applicant contends, in effect, good service, including combat tours. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 132.28. The applicant contends, in effect, family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends, in effect, complained to medical personnel about an injury sustained while on an Airborne jump and issues with PTSD, but was looked at as if the applicant was malingering. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends, in effect, an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits 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 civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Adjustment Disorder, unspecified; Cannabis Use, unspecified.; Generalized Idiopathic Epilepsy, PTSD; Pervasive Developmental Disorder; Generalized Anxiety Disorder (GAD). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant's records indicate that both Adjustment DO and Generalized Idiopathic Epilepsy occurred during military service. Without additional information on the remaining diagnoses, medical mitigation cannot fully be applied to them, as there is no evidence they existed during service or affected behavior at the time of the misconduct. (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 a medical condition and BH condition which, more likely than not, led to the misconduct. Applicant has a history of epilepsy beginning at age four. In 2004, while on active duty, the applicant suffered from a generalized tonic colonic seizure. Apparently, the seizure disorder went into remission for several years following this 2004 seizure but recrudesced while the applicant was AWOL, and experienced two generalized seizures. During post-service 2018 during a Neurology assessment, the applicant reported incurring a head injury during a 2011 airborne jump wherein there was bleeding from the applicant's ears. The BH Advisor opines that it is more likely than not that, at the time of the AWOL, the applicant was suffering from the combined effects of two major insults to the brain - head injury and epilepsy - both of which could impair judgement and decision-making capability, leading to the misconduct. 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 Generalized Idiopathic Epilepsy outweighed the AWOL basis for separation for the aforementioned reason(s). (4) b. Response to Contentions: (1) The applicant contends he complained to medical personnel about an injury sustained while on an Airborne jump and issues with PTSD but was looked at as if malingering. The Board considered this contention and determined that the applicant's Generalized Idiopathic Epilepsy fully mitigated the AWOL and relief was warranted. (2) The applicant contends good service, including combat tours. 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 Generalized Idiopathic Epilepsy fully mitigated the AWOL basis for separation. (3) The applicant contends family issues affected behavior and ultimately caused the discharge. 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 ultimately did not address the contention due to an upgrade being granted based on the applicant's Generalized Idiopathic Epilepsy fully mitigated the AWOL basis for separation. (4) The applicant contends suffering from PTSD and depression. The Board considered this contention and the applicant's assertion of PTSD and depression, 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. The Board ultimately did not address the contention due to an upgrade being granted based on the applicant's Generalized Idiopathic Epilepsy fully mitigated the AWOL basis for separation. (5) The applicant contends an upgrade of the discharge would allow veterans benefits. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do 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. c. The Board determined the discharge is inequitable and clemency was warranted based on the applicant's Generalized Idiopathic Epilepsy fully mitigating the applicant's AWOL and drug use. Therefore, the Board directed the issue of a new DD Form 214 changing 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. d. Rationale for Decision: (1) The Board voted change the applicant's characterization of service to Honorable because the applicant's Generalized Idiopathic Epilepsy fully mitigated the AWOL instance. (2) 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 Board voted to maintain the RE-4 due to the mitigating condition being service limiting. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: 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 AR20200003911 1