1. Applicant's Name: a. Application Date: 9 December 2019 b. Date Received: 12 December 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is bad conduct. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, his discharge was improper and inequitable. His performance during an ambush saved the lives of many in his platoon that earned national recognition that led to a recommendation for valor. He later was awarded a Purple Heart for his injuries. He began to abuse drugs and alcohol as a means of self-medicating for untreated mental health concerns. He faced the unbearable lifestyle which led to homelessness and the inability to properly transition back into society. He served his country honorably for 25 consecutive months without any behavioral infractions. He was not afforded the opportunity to rehabilitate before nor after deployment. His awards and decorations were not taken into consideration at the time of his discharge. He suffered from undiagnosed, misdiagnosed or untreated mental health condition, including PTSD while in Service. He attempted suicide twice after returning from Operation Enduring Freedom in 2003. In a telephonic personal appearance hearing conducted on 13 September 2021, and by a 3-2 vote, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, the Board determined that clemency is warranted based on possible OBHI/PTSD treatment needed. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to Under Other than Honorable Conditions. 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: 22 June 2007 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 57, dated 19 November 2004, on 29 April 2004, the applicant was found guilty of the following: Charge I, in violation of Article 86 of without authority, failing to go at the times prescribed to his appointed places of duty, 2 October 2003 and 25 October 2003 and being absent from his unit from 20 February 2004 until on or about 23 February 2004; Charge II, in violation of Article 90 of disobeying a lawful command from CPT D.B., his superior commissioned officer to have no contact with T.B., on 6 October 2003; Charge III, in violation of Article 91, of being disrespectful in language towards SSG G.D.D., an NCO, by saying to him, "You are a sorry mother-fucker.", "I will fuck you up.", and "You weak sorry dark black mother-fucker.", or word to that effect, on 23 February 2004; and Charge IV, in violation of Article 112a, of wrongfully using cocaine between 21 February 2004 and 23 February 2004 (2) Adjudged Sentence: Confinement for 6 months and to be discharge from service with a Bad-Conduct Discharge (3) Date/Sentence Approved: 19 November 2004, the sentence was approved and except for that part of the sentence extending to a Bad-Conduct Discharge, was ordered to be executed but the execution of that part of the sentence adjudging confinement in excess of 4 months was suspended for 4 months at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted without further action. The automatic forfeiture of pay and allowances required by Article 58(b) UCMJ, was ordered waived effective 13 May 2004, with the direction that those forfeitures of $1,193.40 per month for 2 months were paid to the spouse of the accused in support of his dependents. The applicant was credited 66 days of confinement against 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: Special Court-Martial Order Number 23, dated 2 February 2007, ordered the execution of the bad-conduct discharge 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 August 2000 / 4 years / Retained in service 867 days for the convenience of the Government per AR 635-200. b. Age at Enlistment / Education / GT Score: 27 / 12 years / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 6 years, 4 months, 17 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq, (specific dates not in the file) f. Awards and Decorations: PH, AAM-2, NDSM, ICM-1 BS, GWOTSM, KDSM, ASR, OSR-2, CIB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: DA Form's 4187 (Personnel Action) changing the applicant's duty status as following: Present for Duty (PDY) to Absent Without Leave (AWOL), effective 2 October 2002 AWOL to PDY, effective 20 October 2002 PDY to Civilian Confinement (CCA), effective 19 November 2002 CCA to PDY, effective 10 December 2002 Special Court-Martial, see paragraph 3c(2) above. i. Lost Time / Mode of Return: Total time lost 159 days: Absent without leave for a total of 40 days; 37 days (2 October 2002 to 18 November 2002) and 3 days (20 February 2004 to 22 February 2004) / mode of return for both unknown; Military Confinement for a total of 119 days; 21 days (19 November 2002 to 10 December 2002) and 98 days (24 February 2004 to 2 June 2004). The DD Form 214 under review makes reference to 1,115 days of excess leave (3 June 2004 to 22 June 2007) j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; statement of medical examination and duty status; memorandum for commander, dated 15 September 2004, reference line of duty investigation; memorandum for record, reference missing documents (AWOL to PDY) effective 23 February 2004; DA Form's 4187 (4) changing the applicant's duty status; Special Court- Martial Orders 57, dated 19 November 2004 and Special Court Martial Order Number 23 dated 2 February 2007; United States Army Court of Criminal Appeals letter dated 24 August 2006; change of station orders dated 4 May 2004; discharge orders dated 18 June 2007; and DD Form 214 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states in his application, his strong faith helped him become a mentor / volunteer at the Villages at Rowehill and an active member of the National Association for the Advancement of Colored People (Unit #3175) both in Cincinnati, Ohio. 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 Service-member discharged from active military service within 15 years of the Service-member'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. 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. 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." 8. DISCUSSION 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 record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of records 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 seeks relief contending, his discharge was improper and inequitable; and his awards and decorations were not taken into consideration at the time of his discharge; and he attempted suicide twice after returning from Operation Enduring Freedom in 2003. The applicant contentions were noted; the applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was improper and inequitable and that his awards and decorations were not considered at the time of discharge or that he attempted suicide twice. The applicant contends, his performance during an ambush saved the lives of many in his platoon that earned national recognition that led to a recommendation for valor; he later was awarded a Purple Heart for his injuries; and he served his country honorably for 25 consecutive months without any behavioral infractions. The applicant's in service accomplishment are noted; and the applicant is to commended. It should also be noted that the applicant's service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. The applicant contends, he began to abuse drugs and alcohol as a means of self-medicating for untreated mental health concerns. The applicant 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 also contends he was not afforded the opportunity to rehabilitate before nor after deployment. AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance. Moreover, he suffered from undiagnosed, misdiagnosed or untreated mental health condition, including PTSD while in Service. The service record contains no evidence of PTSD diagnosis or any other mental health condition and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. 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 witnesses, 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? No. The Board's Medical Advisor, a voting member, reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony that, when applying liberal consideration, convinced the Board of a possible mitigating BH condition. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant seeks relief contending, his discharge was improper and inequitable; and his awards and decorations were not taken into consideration at the time of his discharge; and he attempted suicide twice after returning from Operation Enduring Freedom in 2003. The applicant contentions were noted; the applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was improper and inequitable. (2) The applicant contends, his performance during an ambush saved the lives of many in his platoon that earned national recognition that led to a recommendation for valor; he later was awarded a Purple Heart for his injuries; and he served his country honorably for 25 consecutive months without any behavioral infractions. The applicant's in-service accomplishments are noted; and the applicant is to commended. It should also be noted that the applicant's service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. (3) The applicant contends, he began to abuse drugs and alcohol as a means of self- medicating for untreated mental health concerns. The applicant 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. There is also no evidence of record, nor provided by the applicant, to support mental health conditions or treatments. (4) The applicant also contends he was not afforded the opportunity to rehabilitate before nor after deployment. While a one-time drug use would be considered by the Board on its own volition, the multitude of offenses in the applicant's file convinced the Board that relief was not warranted with the evidence supplied. (5) Moreover, he suffered from undiagnosed, misdiagnosed or untreated mental health condition, including PTSD while in Service. The service record contains no evidence of PTSD diagnosis or any other mental health condition and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. c. The Board determined that partial relief was warranted due to possible misdiagnosis of BH condition. The Board determined that full relief was not warranted due to the multiple offenses both before, during, and after the alleged mitigating BH conditions. d. Rationale for Decision: (1) The Board voted to partially upgrade the applicant's discharge to Under Other Than Honorable Conditions out of clemency. While no diagnoses were presented, the applicant should be able to seek VA assistance for the alleged BH conditions that occurred in service. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, 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 AR20200004278 3