1. Applicant's Name: a. Application Date: 9 April 2020 b. Date Received: 14 April 2020 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 honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, being a 17 year old troubled youth when joining the military. The applicant says Basic Training alone, taught ingrained honor, discipline, chain of command, brotherhood, diversity and mental and physical strength. The applicant learned quickly success was possible and took the new role in life as a Soldier very seriously. The applicant says the first duty station was where strong relationships with comrades were developed and it was the first time of feeling fully connected to something larger than one's self. The applicant states 3 weeks before orders to deploy to Afghanistan, applicant's wife prematurely gave birth to twin sons. Applicant still trained daily with peers for the upcoming deployment. The applicant further details the contentions in an allied self-authored statement provided with the application. In a records review conducted on 23 March 2022, 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 the applicant's PTSD partially mitigating the basis for separation. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to Under Other Than Honorable Conditions. 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: 14 December 2014 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 3, dated 3 February 2012, on 5 January 2011, the applicant was found guilty of the following: Charge I, in violation of Article 81. Plea: Guilty. Finding: Guilty. The Specification: On 5 May 2010, the applicant conspired with Corporal J.M., Staff Sergeant D.B., Staff Sergeant C. G., Specialist C. M., and Sergeant D.J. to commit an offense under the Uniform Code of Military Justice, to wit: assault consummated by a battery of Private First Class J.S. by striking him on the body with their hands and feet. Charge II, Article 134. Plea: Guilty. Finding: Not Guilty. The Specification: On 5 May 2010, the applicant wrongfully endeavored to impede an investigation in the cases of U.S. v. himself, U.S. v. Corporal J. M., U.S. v. Sergeant D. J., U.S. v. Specialist C. M., U.S. v. A. K., and other suspected hashish users by kicking PFC J.S. in the body with their feet which conduct was prejudicial to the good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces. Charge III, Article 128. Plea: Guilty. Finding: Guilty. The Specification: On 5 May 2010, the applicant unlawfully struck PFC J. S. on the body with their hands and feet and spit in the face. Plea: Guilty, except the words: "hands and" and the words: "and spit in his face"; to the excepted words: Not Guilty; to the remaining words: Guilty. Finding: Guilty excepting the words: "hands and" "spit in the face"; of the excepted words: Not Guilty; of the remaining words: Guilty. Charge IV. Article 112. Plea: Guilty. Finding: Guilty. The Specification: On divers' occasions between on or about 1 September 2009 and on or about 11 May 2010, the applicant wrongfully used hashish a Schedule I controlled substance while receiving special pay under 37 U.S.C. Section 310. Plea: Guilty. Finding: Guilty, excepting the words and figures: "1 September" and, the figure "11", substituting the words and figures: "5 October" and "1", and excepting the words "Forward Operating Base Ramrod"; of the excepted words and figures: Not Guilty; of the substituted and remaining words and figures: Guilty. Charge V. Article 92. Plea: Guilty. Finding: Guilty. The Specification: On divers' occasions between on or about 1 September 2009 and on or about 15 May 2010, the applicant violated a lawful general order to wit: paragraph 2f, CENTCOM General Order No. 1B, dated 13 March 2006, by wrongfully photographing and possessing visual images of human casualties. Plea: Guilty. Finding: Guilty, excepting the words and figures: "1 September", substituting therefore the words and figures: "25 November"; excepting the words "photographing and", of the excepted words and figures: Not Guilty; of the substituted and remaining words and figures: Guilty. (2) Adjudged Sentence: Reduction to E-2; hard labor without confinement for 90 days, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 5 January 2011 / only so much of the sentence, a reduction E-2 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: 17 August 2012 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 December 2012 / 5 years b. Age at Enlistment / Education / GT Score: 17 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 6 years, 1 month, 6 days d. Prior Service / Characterizations: RA, 9 November 2006 - 8 December 2008 / HD (Concurrent Service) e. Overseas Service / Combat Service: SWA / Afghanistan (22 July 2009 - 21 July 2010) f. Awards and Decorations: ACM-CS, AAM, GCM, NDSM, GWOTSM, ASR, CIB g. Performance Ratings: NA Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. h. None i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a signed copy of an Attending Physician's Statement, dated 25 February 2020, which shows PTSD diagnosis. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; 19 third party letters; Attending Physician's Statement. 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. 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) or honorable. 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 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 having been battling the symptoms and effects of PTSD from the events endured during deployment to Afghanistan. The applicant's AMHRR contains no documentation of PTSD diagnosis. The applicant did submit an Attending Physician's Statement, dated 25 February 2020, showing he was diagnosed with PTSD that supports the contention he suffers from PTSD. The AMHRR is void of documents showing the applicant underwent a mental status evaluation (MSE) which would indicate the applicant's mental status during discharge proceedings and any diagnoses he may have received. The applicant contends good service, including a combat tour. The applicants service accomplishments and the quality of service will be considered by the board according to the DODI 1332.28. The applicant contends fear of squad leader and peer pressure forced the wrong decision to assault another Soldier for being a whistle blower in the units' hashish and marijuana use while deployed. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends 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/or civilian provider documentation. Applicant is diagnosed with the following potentially mitigating BH conditions: MDD, PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant was diagnosed with MDD while in service; post-service, he has been diagnosed with PTSD related to military service by a civilian provider. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. It is the opinion of the Board's Medical Advisor that the applicant has a BH condition which mitigates some of the misconduct. As there is an association between PTSD and use of illicit drugs to self-medicate symptoms, there is a nexus between the diagnosis of PTSD and the applicant's use and possession of hashish. The offenses of conspiracy to commit assault and battery, committing assault and battery and taking and possessing photos of dead enemy combatants are not mitigated by the diagnosis of PTSD. Specifically, the choice of victim (with regards to the assault and battery) was not by accident or chance, the actions (of committing assault and battery and of taking and possessing gruesome photos) were not spontaneous or unplanned, and these actions did not suggest a re-enactment of combat-related trauma. Rather, they involved a series of conscious and deliberative choices which showed intent and planning. As such, while Liberal Consideration was applied, these offenses were not mitigated. (4) Does the condition or experience completely outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant's medical conditions completely outweighed the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends having battling the symptoms and effects of PTSD from the events endured during deployment to Afghanistan. The Board determined this contention was valid and mitigated the drug use/possession portion of the applicant's basis for separation. (2) The applicant contends good service, including a combat tour. The applicant's length and combat service were taken into consideration, but the Board determined that only partial relief was warranted due to the premeditated, violent nature of the un-mitigated offenses. (3) The applicant contends fear of squad leader and peer pressure forced the wrong decision to assault another Soldier for being a whistle blower in the unit's hashish and marijuana use while deployed. The Board determined this contention had no merit, as peer pressure is not an excuse for violent behavior as a reciprocating response to an accuser. (4) The applicant contends an upgrade of the discharge would allow veterans benefits. The Board 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 majority of the Board determined, 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 the applicant's PTSD partially mitigating the basis for separation. However, the applicant may request a personal appearance hearing to address further issues before the Board. 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 drug use/possession portion of the basis for separation was mitigated by the applicant's PTSD. Thus the prior characterization is no longer appropriate. The non-mitigated, violent nature of the remaining offenses of conspiracy to commit assault and battery, committing assault and battery and taking and possessing photos of dead enemy combatants warranted no further relief. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and 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. 10. 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 AR20200006430 1