1. Applicant's Name: a. Application Date: 17 June 2020 b. Date Received: 19 June 2020 c. Counsel: 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 of his bad conduct discharge to honorable, a separation code (SPD), a narrative reason change and a reentry code (RE) change. The applicant seeks relief contending, in effect, the adjudged bad conduct discharge is facially excessive and disproportionate to the misconduct at issue; and, the applicant's overall service record at the time of discharge and his conduct post-discharge are deserving of an honorable characterization of service. In a telephonic Personal Appearance conducted on 3 May 2021, and by a 4-1 vote, the Board determined the characterization of service was too harsh and clemency is warranted based on length and quality of service, to include combat service, the circumstances surrounding discharge (service-connected PTSD), prior period of honorable service, and post-service accomplishments. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to general under honorable conditions. Please see section 10 for more information 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: 15 May 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 8, dated 21 July 2005, on 17 March 2004, the applicant was found guilty of the following: The Charge: 17 Specifications of violation of Article 86, UCMJ: Specification 1: Unauthorized absence from unit at Fort Leonard Wood, Missouri, from on or about 16 November 2004 to on or about 22 November 2004. Plea: Guilty. Finding: Guilty. Specifications 2 through 8: Failure to repair at Fort Leonard Wood, Missouri, between 9 and 15 November 2004 at 1800 hours. Plea: Guilty. Finding: Guilty. Specifications 9 through 13: Failure to repair at Fort Leonard Wood, Missouri, between 9 and 13 November 2004 at 0630 hours. Plea: Guilty. Finding: Guilty. Specification 14: Failure to repair at Fort Leonard Wood, Missouri, on 14 November 2004 at 1300 hours. Plea: Not Guilty. Finding: Not Guilty. Specification 15: Failure to repair at Fort Leonard Wood, Missouri, on 15 November 2004 at 0900 hours. Plea: Guilty. Finding: Guilty. Specification 16: Failure to repair at Fort Leonard Wood, Missouri, on 5 December 2004 at 0800 hours. Plea: Not Guilty. Finding: Not Guilty. Specifications 17 and 18: Failure to repair at Fort Leonard Wood, Missouri, on 6 and 15 December 2004 at 1800 hours. Plea: Guilty. Finding: Guilty. Additional Charge I: Article 121. Plea: Guilty. Finding: Guilty. Specification: Larceny of U.S. currency, military property, of a value of $1,832.40, at Fort Leonard Wood, Missouri, on or about 8 November 2004, except the words and figures "on or about 8 November 2004", substituting therefor the words and figures, "between on or about 10 December 2004 to 31 January 2005". Of the excepted words and figures, Not Guilty, of the substituted words and figures, Guilty. Plea: Guilty, as amended. Finding: Guilty, as amended. Additional Charge II: Article 132. Plea: Guilty. Finding: Guilty. Specification: Fraud against the United States of about $1,832.40 at Fort Leonard Wood, Missouri, on or about 10 December 2004 by making and using a false writing, to wit: A Termination of Assignment to Family Housing Notice. Plea: Guilty. Finding: Guilty. (2) Adjudged Sentence: Reduction to E-1; forfeiture of $822 Pay per month for seven months; to be confined for seven months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 21 July 2005 / only so much of the sentence, a reduction E-1, forfeiture of $822 pay per month for seven months, confinement for six months, and a bad conduct discharge was approved and, except for that part of the sentence extending to a bad conduct discharge, would be executed. (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: 7 September 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 February 2004 / 4 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 107 c. Highest Grade Achieved / MOS / Total Service: E-4 / 42L10, Administrative Specialist / 6 years, 9 months, 6 days d. Prior Service / Characterizations: RA, 13 November 1997 - 14 April 1998 / UNC (Break in Service) RA, 14 August 2000 - 8 February 2004 / HD e. Overseas Service / Combat Service: SWA / Iraq (period of service NIF) f. Awards and Decorations: BSM, AAM, NDSM, GWOTEM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. i. Lost Time / Mode of Return: 142 days: AWOL, 16 November 2004 - 21 November / NIF Military Confinement, 17 March 2005 - 7 August 2005 / Sentence Complete j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his VA disability rating decision, dated 20 October 2020, which reflects the applicant was rated 50 percent disability for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief; two DD Forms 214; BSM certificate; AAM certificate; Diploma; VA Rating Decision. 6. POST SERVICE ACCOMPLISHMENTS: Counsel states the applicant has good post-service conduct. 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) Chapter 3, Section III establishes policy and procedures for separating members with a dishonorable or bad conduct discharge. (6) 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. 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. 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's record of service, the issues and documents submitted with the 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 applicant believes the narrative reason for the discharge should be changed because it was unfair. The applicant was separated under the provisions of Chapter 3, AR 635-200 with a bad conduct 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 the VA has granted him a service connected disability for PTSD. The applicant contends that he had good service, which included a combat tour. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the 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 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) Applicant was diagnosed with PTSD by the VA. (2) Did the condition exist or experience occur during military service? (YES) The VA has established that the applicant's PTSD occurred during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? (PARTIALLY) The ADRB's Medical Advisor, a voting member of this board, opined that the applicant's PTSD diagnosis mitigates AWOL and his Failures to Report misconduct. The ADRB accepted this opine, but found that the conscious choices and planning required to forge approval of housing allowance are not mitigated by the applicant's PTSD diagnosis because PTSD is associated with sudden, impulsive decisions, not the long-term planning required for forgery. (4) Does the condition or experience outweigh the discharge? (PARTIALLY) The ADRB found that the avoidance behaviors associated with AWOL and FTR resulted from the applicant's PTSD diagnosis, and therefore outweighs his discharge for the offenses of AWOL and Failures to Report. Because of the conscious choices and forethought associated with forgery, the ADRB found that the PTSD diagnosis does not outweigh the offense of larceny because PTSD is associated with sudden, impulsive decisions, not the long-term planning required for forgery. b. The ADRB determined that the applicant's characterization of service was too harsh based on diagnosed PTSD mitigating some of the misconduct. c. The applicant's contentions are: (1) The adjudged bad conduct discharge is facially excessive and disproportionate to the misconduct at issue. The Board determined that the applicant's diagnosis of PTSD mitigates the avoidance behavior, such as AWOL and FTR. Therefore, the characterization of discharge was too harsh and warrants an upgrade. Because the ADRB did not find that the applicant's diagnosis of PTSD mitigated the forgery associated with the larceny of funds, they did not find that an upgrade to honorable was warranted. Further, the Board did not vote to change the reason because applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. (2) The overall service record at the time of discharge and his conduct post discharge are deserving of an honorable characterization of service. The Board determined some relief is warranted based on the applicant's PTSD diagnosis, as well as length and quality of service, to include combat service, prior period of honorable service, and post service accomplishments. Ultimately, however, the ADRB found that larceny of more than $1,800 and the fraud associated it renders the applicant's entire tenure of service less than fully honorable, so only voted to upgrade the applicant to a General (Under honorable conditions) characterization. (3) The applicant contends the VA has granted him a service connected disability for PTSD. Medical documentation confirms applicant is 50% service connected for PTSD and the ADRB concurred that the applicant has a BH diagnosis that mitigates part of the misconduct which led to separation from the Army. d. The Board determined that the characterization of discharge was inequitable based on the PTSD diagnosis as well as length and quality of service, to include combat service, prior period of honorable service and post service accomplishments. e. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service because the applicant had a BH condition, PTSD, which mitigates the avoidance behaviors associated with AWOL and FTR. However, the ADRB found that the deliberate planning and conscious choices the applicant made when committing fraud to obtain more than $1,800 from the US Army illicitly, are not associated with the PTSD diagnosis. Therefore, the Board voted to only upgrade the applicant's characterization of service to General (under honorable conditions). (2) The board did not vote to change the reason because 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. (3) Because the reason was not changed, the SPD/RE code will not change. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: Yes b. Change Characterization to: General (Under Honorable Conditions) c. Change Reason to: No Change d. Change SPD / RE Code 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 NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry 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 AR20200006196 1