1. Applicant's Name: a. Application Date: 14 January 2020 b. Date Received: 24 January 2020 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his bad conduct discharge to honorable or general (under honorable conditions) and a narrative reason change. The applicant seeks relief contending, in effect, there is no dispute in the record that the applicant suffered from mental health and family issues at the time of his going AWOL, a strictly military non-violent offense for which the applicant accepted responsibility and served his time. Since leaving the military, the applicant has been a model citizen, seeking treatment for his depression through counselling services, and regularly working in his local community to help individuals with developmental and intellectual disabilities. Additionally, the applicant has worked diligently to improve his life and the lives of his wife and children, as he is now three years into his business administration degree and has worked his way up to a warehouse manager for Amazon. Without an upgrade, the applicant will continue to carry the stigma of a bad conduct discharge, negatively affecting every employment and promotion opportunity and directly affecting his ability to provide for his family. With an upgrade, the applicant can continue on the positive path he is currently on, continuing his education, helping his family thrive, and giving back to his community. In view of applicant's mental health and family issues at the time of his AWOL, the fact that the applicant accepted responsibility and served his time, the applicant's positive life achievements since leaving the military, and the Board's previous favorable decisions under liberal consideration, clemency is warranted. Counsel further details the contentions in an allied legal brief provided with the application. 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 Adjustment Disorder with depressed mood; Alcohol Dependence with continuous drinking behavior; Major Depression, recurrent. VA medical records contain no BH content. The applicant is not service-connected from the VA. In summary, the applicant does not have 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 18 November 2020, and by a 3-2 vote, the Board determined that the discharge was too harsh based on the applicant's post service accomplishments, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general under honorable conditions, the separation authority to AR 635-200 paragraph 14-12, the narrative reason for separation to Misconduct (absent without leave), and the separation code to JKD. (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 November 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 28, dated 30 October 2012, on 23 April 2012, the applicant was found guilty of the following: The Charge. Article 85. (After entry of pleas but before findings, the military judge granted the unopposed motion of Trial Counsel to amend the Article number by changing the figure "85" to "86".) Plea: Not Guilty, but Guilty to the lesser included offense of absence from the unit, organization, or place of duty in violation of Article 86, UCMJ. Finding: Guilty as amended. Specification 1: On or about 10 June 2009, the accused, did, without authority and with intent to remain away therefrom permanently, absent himself from his unit, to wit: 501st Brigade Support Battalion, 1st Brigade Combat Team, 1st Armored Division, located at Fort Bliss, Texas, and did remain so absent in desertion until he was apprehended on or about 11 March 2010. Plea: Not Guilty, but Guilty to the lesser included offense of absence from the unit, organization, or place of duty in violation of Article 86, UCMJ. Specification 2: On or about 12 March 2010 the accused, did, without authority and with intent to remain away therefrom permanently, absent himself from his unit, to wit: 501st Brigade Support Battalion, 1st Brigade Combat Team, 1st Armored Division, located at Fort Bliss, Texas, and did remain so absent in desertion until he was apprehended on or about 11 November 2010. Plea: Not Guilty, but Guilty to the lesser included offense of absence from the unit, organization, or place of duty in violation of Article 86, UCMJ. (2) Adjudged Sentence: To be confined for seven months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 30 October 2012 / only so much of the sentence, confinement for seven days, and a bad conduct discharge was approved and, except for that part of the sentence extending to a bad conduct discharge, would be executed. The applicant was credited with 11 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: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 January 2008 / 4 years b. Age at Enlistment / Education / GT Score: 17 / GED / 85 c. Highest Grade Achieved / MOS / Total Service: E-2 / 92A10, Automated Logistical Specialist / 3 years, 3 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 10 June 2009; From "AWOL" to "Dropped From Rolls (DFR)," effective 11 July 2009; From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)" effective 23 April 2012; and, From "CMA" to "PDY," effective 3 October 2012. Military Police Report, dated 4 May 2009, reflects the applicant was apprehended for: AWOL - Apprehended by Military Authorities (On Post). Military Police Report, dated 4 June 2009, reflects the applicant was apprehended for: AWOL- Departed From Place of Duty (On Post). i. Lost Time / Mode of Return: 2 years, 10 months, 10 days: AWOL, 10 June 2009 - 11 March 2010 / Apprehended by Civil Authorities AWOL, 12 March 2010 - 11 November 2011 / Apprehended by Civil Authorities CMA, 23 April 2012 - 2 October 2012 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: Mental Health Needs Assessment, dated 15 May 2012, reflects the applicant had: Mild Impairment: Minor symptoms that may indicate periodic follow up or maintenance clinical services. Symptoms are present but do not mandate constant intervention. No impairment in institution functioning. The inmate should be assessed by an Individually Credentialed Provider to detuning the extent of symptoms, and treatment adjusted accordingly. Mild Personality Disorder; Mild Mood Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief; two Military Police Reports; Personal Declaration; Special Court-Martial proceedings; Charge Sheet; Chicago Lakeshore Hospital Admission document; Chicago Public Schools documents; Incident Report; Advocate Christ Medical Center letter; Certificate of Completion; High School Equivalency Certificate; Transcripts; DD Form 214; Mental Health Needs Assessment; New Inmate's Mental Status; Post-Trial Staff Judge Advocate's Recommendation; Report of Results of Trial; Defense Request for Sanity Review Board; two Chronological Records Of Medical Care; Declaration in support of discharge upgrade; cover sheet. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he has been a model citizen, seeking treatment for his depression through counselling services, and regularly working in his local community to help individuals with developmental and intellectual disabilities. The applicant has worked to improve his life and the lives of his wife and children, and is now three years into his business administration degree and has worked his way up to a warehouse manager for Amazon. 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. 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. 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, through counsel, requests an upgrade of his bad conduct discharge to honorable or general (under honorable conditions) and a narrative reason change. 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 that he was having family issues that affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct, which led to the separation action under review. The applicant's service record contains documentation that supports the applicant may have been suffering from Mild Personality Disorder; Mild Mood Disorder; 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 believes the narrative reason for the discharge should be changed because it was unfair. However, the applicant was separated under the provisions of Chapter 3, AR 635-200 with a under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Court-Martial (Other)," and the separation code is "JJD." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends that other Soldiers with similar offenses were granted relief by the Board. However, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant contends that an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 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 18 November 2020, and by a 3-2 vote, the Board determined that the discharge was too harsh based on the applicant's post service accomplishments, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general under honorable conditions, the separation authority to AR 635-200 paragraph 14-12, the narrative reason for separation to Misconduct (absent without leave), and the separation code to JKD. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions c. Change Reason to: Misconduct (absent without leave) d. Change Authority to: AR 635-200, paragraph 14-12 e. Change SPD / RE Code to: JKD / 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 AR20200004019 6