ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   BOARD DATE: 11 May 2022 DOCKET NUMBER:  AR20210017607 
COUNSEL REQUESTS: On behalf of the applicant, Counsel requests correction of the record to show characterization of service as Honorable. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
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United States District Court for the District of Idaho, Case No. 2:21-cv-00346­CWD, Order RE: Motion for Voluntary Remand and Stay of Proceedings 

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ABCMR Case Number AR20160019101, 9 December 2019 

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DD Form 149 (Application for Correction of Military Record) 

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Counsel's Petition dated 4 October 2016 

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Self-authored statement from applicant 

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Exhibits A-C, Character Reference Letters 

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Exhibit D, Memorandum, U.S. Army Trial Defense Service, Region West, subject: Recommendation for Clemency in the case of U.S. v. [the applicant] dated 29 August 2011 

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Exhibit E, Division of Disability Determination Services, Medical Examination dated 11 November 2013 

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Exhibit F, U.S. Army Court of Criminal Appeals, U.S. v. [the applicant], Summary Disposition, dated 27 March 2013 

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Exhibit G, DD Form 214 (Certificate of Release or Discharge from Active Duty) for separation date 7 February 2014 

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Exhibit H, Letter, Pacific Medical Centers, Dr. B__, re: [the applicant] ­Request for Bad Conduct Discharge Upgrade dated 4 August 2016 

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Counsel's Rebuttal, re: [the applicant] -Supplemental to [A]BCMR Discharge Upgrade Request dated 22 April 2022 

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Self-Declaration, Dr. B__ dated 20 April 2022 

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Exhibit A -Curriculum Vitae, Dr. B__ 

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Exhibits B-C, National Medicine Library Website Abstracts regarding High Risk Sexuality Behavior 




FACTS: 
1. This case comes before the Army Board for Correction of Military Records (ABCMR) on a Court Order from the United States District Court for the District of Idaho, granting a motion for Voluntary Remand and Stay of Proceedings allowing the applicant 30 days from the date of the order to submit supplemental materials to the ABCMR. The ABCMR shall review and consider the applicants renewed petition. In rendering an administrative decision, the ABCMR, must articulate a rational connection between the facts found and the conclusions made [in the Board determination]. 
a. Counsel states the applicant served in Afghanistan with the Army's 75th Ranger Regiment. While there he experienced the horrors of war; he fired his gun, he was fired at, he saw human suffering most people never see over a lifetime. When he came home his behavior changed on account of his combat experience. 
(1) 
In January 2010, the applicant had sexual intercourse with a female who then accused him of rape. The Army court-martialed him and a jury ultimately took the accuser's word over that of the applicant finding him guilty of a charge lesser than rape, "wrongful sexual contact" only to have the trial judge recommend the conviction be set aside because it was illogical that the jury would find that wrongful sexual conduct occurred over an eight-hour timeframe in which the alleged victim had ample opportunity to extricate herself from the situation. 

(2) 
Following his discharge, the applicant asked the ABCMR for [his characterization of service] upgrade to Honorable. In support of his application he submitted three sworn declarations from his chain of command, a sworn statement from his doctor opining that "[the applicant's] combat caused Post-Traumatic Stress Disorder (PTSD) was a substantial contributing factor to the conduct giving rise to his discharge from the Army," and a memorandum from the judge who presided over the court-martial stating "I support the defense request for clemency for [the applicant] on the grounds of contradictory findings of fact and an unusually severe sentence. After over a four year wait the ABCMR denied his petition and based it solely on a conclusory letter from an unknown agency psychologist who, without explanation, determined that his PTSD was not a mitigating factor leading to his discharge." 

b. Counsel presents the following as facts on behalf of the applicant: 

(1) 
The applicant volunteered to join the U.S. Army in 2008, he knowingly joined the Army during a time of armed conflict and volunteered to serve in the U.S. Army's 75th Ranger Regiment. In becoming a Ranger one becomes not just a volunteer, but "a four-time volunteer." First for the Army, second for airborne training, third for the Ranger Indoctrination Program, and fourth, for the U.S. Army's Ranger School. 

(2) 
In support of the ABCMR petition, the applicant's section leader, platoon leader, and platoon sergeant all declared, under penalty of perjury, that from the applicant's arrival at the 2nd Ranger Battalion's Mortar Platoon in mid-2008 through his 2009 deployment to Afghanistan, his performance was exemplary. Sergeant First Class (SFC/E7) P__ testified that the applicant would "run through a brick wall" for his leadership. His platoon leader, Captain (CPT/O3) D__, and platoon sergeant, T__, similarly praised the applicant's performance both in garrison and on a foreign battlefield. His section leader testified that in combat "[the applicant] exercised sound judgement and the maturity expected of a young Ranger operating in a counter insurgency battlefield." 

(3) 
During these complex counter insurgency operations, [the applicant] repeatedly discharged his weapon and was shot by enemy forces. Although he did not know it at the time, the stress he faced on the battlefield caused PTSD. Upon returning home from Afghanistan in mid-2009 his performance began to deteriorate. The culminating event giving rise to the applicant's discharge occurred on 25 January 2010, he had sexual intercourse with a married civilian female and (following three separate rounds of sexual intercourse over an eight-hour period) was accused, by that married civilian female, of rape. 

(a) 
Ultimately the government charged him with four Specifications of Charge 1: Article 120 of the UCMJ. A jury trial by court martial ensued and a jury found him not guilty of Specifications 1, 2, and 3, i.e. the allegations that the applicant forcibly raped the civilian female or threatened the civilian female with physical harm should she not have sex with him. The jury did, however, convict him of Specification 4 -"sexual contact -without legal justification or lawful authorization and without the permission" (Wrongful Sexual Contact) of the accuser. The jury also convicted him of Adultery under the Uniform Code of Military Justice (UCMJ) Article 134 "catch all" provision. 

(b) 
On August 29, 2011, Lieutenant Colonel H__, the judge who presided over the General Court Martial, recommended that the Wrongful Sexual conviction be set aside because, inter alia, it was "logically inconsistent considering all of the alleged behavior occurred over roughly 8 hours with the same accused." The "alleged behavior" consisted of "three occasions of sexual penetration" that occurred over eight hours. 

(c) 
The 15 September 2011, Court-Martial Order reflects that the applicant was sentenced to six months' confinement "and to be discharged from the service with a Dishonorable Discharge." The "Action" section on the 15 September 2011, order reflects that the Dishonorable Discharge was changed to a Bad Conduct Discharge. 

(4) 
Following the applicant's court-martial he was (in 2013) subsequently diagnosed with PTSD.  On 27 March 2013, the U.S. Army Court of Criminal Appeals set 

aside the jury's adultery finding because the adultery specification did not allege the terminal requirements required under United States v. Foster, 70.MJ. 225 (C.A.A.F.2011). On or about 2 February 2014, the applicant was discharged with a bad conduct discharge.  Following his PTSD diagnosis, in July 2015 he was rendered partially paralyzed in a motorcycle accident. The applicant is now wheelchair-bound and will be wheelchair bound for the rest of his life. On or about 18 October 2016, the applicant filed a petition [DD Form 149 (Application for Correction of Military Record)] with the ABCMR seeking to upgrade his discharge to honorable so that he could obtain VA education and medical benefits. Attached at Exhibit A. 

(a) 
The applicant's petition cited the Secretary of Defense's September 3, 2014 "Memorandum" for Secretaries of the Military Departments" in which the Secretary of Defense provided supplemental guidance to military correction boards considering discharge upgrade requests for veterans claiming PTSD. Regarding the medical guidance, the memorandum provides, in part, that "liberal consideration will be given in petitions for changes in in characterization of service to service treatment record entries which document one or more symptoms which meet the diagnostic criteria of [PTSD] or related conditions," and regarding situations (like this case here) in which the applicant was unaware of his PTSD until his military discharge, the medial guidance provides that "liberal consideration will also be given in cases where civilian providers confer diagnosis of PTSD or PTSD-related conditions, when case records contain narratives that support symptomology at the time of service, or when any other evidence may reasonably indicate that PTSD or PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under honorable conditions characterization of service." 

(b) 
In support of his petition to the ABCMR (2016), he provided testimony from his treating physician, Doctor (Dr.) B__, who opined that his PTSD was a substantial contributing factor to the 25 January 2010 events giving rise to the applicant's court-martial conviction. In fact, Dr. B__ directly associated the conduct that gate rise to the events of 25 January 2010, to symptoms related to the applicant's PTSD. Furthermore, the statements from his platoon leader, platoon sergeant, and section leader make clear that before (and during) his 2009 combat deployment he displayed no characteristics associated with PTSD, but that such characteristics changed upon his redeployment from Afghanistan. Additionally, the applicant submitted Social Security records which relate his PTSD to his military service in Afghanistan. 

(c) 
The Secretary of Defense guidance goes on to state that the BMCR should give "consideration of mitigating factors" for cases "in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge" and that "Those conditions will be considered potential mitigating factors in the misconduct that caused the other than honorable conditions characterization of service." 

(d) 
On 22 November 2019, (three years, one month, and four days after the applicant submitted his petition to the ABCMR), the Army Review Boards Agency (ARBA) sent the applicant an "Advisory Opinion" from an unnamed Army Review Boards Agency Psychologist who opined that "there IS documentation to support the existence of a behavioral health condition at the time of discharge" but that PTSD was not considered a mitigating factor in the misconduct that led to the applicant's discharge. The advisory was void of analysis or explanation upon which he or she based the opinion. A true and correct copy of the Advisory Opinion is attached to Exhibit B. On the same day, the applicant submitted a statement rebutting the Advisory Opinion. A true and correct copy of the applicant's rebuttal is attached as Exhibit C. His rebuttal made clear that the Advisory Opinion should be rejected because 

(e) 
The unnamed psychologist did not explain why he or she reached the conclusion that the applicant's PTSD played no role in his misconduct which, in turn, went afoul of the law requiring that "the expert must explain why alternative hypothesis as to causation are ruled out using scientific methods and procedures [and that] this elimination must not be founded on subjective beliefs or unsupported speculation" Luttrell v Novartis Pharm Corp., 894 F. Supp. 2nd 1324, 1338 (E.D. Wn. 2012) citing Clausen v. M/V NEW CARISSSA, 339 F.3d 1049, 1057, 9th Cir.2003 (internal quotations and citations omitted)); and the Advisory Opinion's unsupported conclusion that the applicant's PTSD did not contribute to his misconduct was also inadmissible as a matter of law because the opinion did not describe scientific method by which that conclusion was derived. 

(5) 
On 24 February 2021, (four years, four months, and six days after the applicant petitioned ABCMR) Counsel received a decision (dated 30 November 2020) from the ABCMR that denied the petition the applicant filed four years earlier. A true and correct copy is attached as Exhibit D. The ABCMR's sole decision for denying his petition was "the Board concurred with the medical advisory opinion finding insufficient evidence in-service mitigating factors to overcome the misconduct. 

c. 
Counsel provide the following reasons, in support of his contention that the ABCMR's decision was arbitrary and capricious, and should be reversed. Counsel's and contends there was a violation of the Administrative Procedures Act in the process of rendering a decision for AR20160019101, 9 December 2019. 

(1) 
The ABCMR's decision was arbitrary, capricious, not in accordance with law, and not supported by substantial evidence. 

(a) 
The ABMCR's decision wholly disregarded Doctor (Dr.) B__'s opinion in favor of an "Advisory Opinion" that failed to articulate any basis as to why Dr. B__'s opinion was wrong and why the "[ARBA] advisory opinion was right. 

(b) 
The ABCMR's decision disregards the Secretary of Defense guidance that "consideration of mitigating factors" for cases "in which Post Traumatic Stress Disorder (PTSD) or PTSD-related conditions may be reasonably determined to have existed at the time of discharge," as the ABCMR did not explain what factors it used [how?] in choosing to credit the [ARBA] advisory's single sentence conclusion "PTSD is not considered a mitigating factor for the misconduct that led to his discharge" (which was not made under penalty of perjury as were all of the applicant's witness statements) over sworn testimony from the applicant's Platoon Leader, Sergeant, Section Leader, Physician as well as a memorandum from the trial judge recommending clemency. 

(c) 
The ABCMR's decision did not articulate any connection between the facts found and the conclusions made which, in turn goes against 9th circuit precedence requiring an agency to articulate "a rational connection between facts found and the choice made," Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1032 (9th Cir.2008). 

(d) 
The ABCMR's decision was not supported by substantial evidence as it set forth no evidence a reasonable mind might accept as adequate to support a conclusion. The decision contained no factually/medically supported counter-opinion, no testimony from witnesses rebutting the testimony from the applicant's chain of command, nor anything refuting the trial judge's clemency recommendation.  The Army hade over four years to assemble some admissible evidence to rebut that of [the applicant], it did not do so. 

(2) 
The Board failed to correct an injustice clearly presented in the record before it, acting in violation of it [statutory] mandate under 10 United States Code § 1552. Haselwander v. McHugh, 774 F.3d 990, 996 (D.C. Cir. 2014), such is the case here. The trial judge recommended clemency given the jury's "illogical" finding that [the applicant] engaged in "unwanted sexual conduct" over a period of eight hours meaning that if the sexual conduct was truly "unwanted" then why remain in [the applicant's presence for eight hours? 

(3) 
If the ABCMR's disregard of sworn testimony of three members from the applicant's chain of command, a sworn statement from a physician linking the applicant's conduct to his PTSD, and a memorandum from the trial judge recommending clemency begs the question: if such evidence is insufficient to meet the Secretary of Defense guidance necessary to upgrade a discharge than what is? 

d. 
Counsel states reversing the ABCMR [decision in AR21060019101] and upgrading the applicant's characterization of service to Honorable so he can access the Veterans Administration (VA) medical care is crucial; his life may just literally depend on it. As Dr. B__ opined. 


"significant role in [the applicant's] actions. It is well known that PTSD causes impairment in social interactions, detachment, and distress in relationships. Ryan dearly deviated from his normal pattern of behavior when be engaged in the intimate sexual relationship that ultimately resulted in his conviction of wrongful sexual conduct and adultery. He had a strong positive reputation amongst his colleagues based on a history of personal responsibility and accountability. PTSD on the other hand is associated reckless and self-destructive behavior. Unfortunately, he continued to struggle with the effects of PTSD on his life. After his military discharge, he was limited in his ability to seek medical treatment Last year he almost lost his life in a motorcycle accident. Though [the applicant] cannot recall the accident. the first responders reported that it was obvious he was going at a high rate of speed, in the dark, and under wet conditions. He was thrown off his bike so far into the woods it took several attempts before his friends could find him. He sustained a near fatal head injury that left him in the neurologic-ICU with a very poor prognosis for a week before he stabilized. He also sustained a burst fracture of his thoracic vertebra that has resulted in complete paralysis from the waist down. This is a young man who never even got a speeding ticket in high school. His story is a classic demonstration of the catastrophic impact untreated PTSD can have on a person's life." 
e. 
The applicant respectfully prays the Honorable Court enter an order granting him all remedies available by law, including but not limited to an ordering the ABCMR to upgrade the applicants discharge [characterization of service] to honorable, correct the narrative reason for separation, award reasonable attorneys' fees; and grant such other and further relief the Court deems just and proper. 

f. 
The Court Motion indicates true and correct copies of specific documents are attached as Exhibits A through D, however, the Court Motion is void of said Exhibits. ABCMR Docket AR20160019101, 9 December 2019 provides Exhibits A through H in the original petition, and although we may be able to extrapolate based on "titles" in the court motion, we are unable to specially, address or provide the Board with Exhibits A through D, identified in the court motion. Additionally, aside from the court motion [void of Exhibits], neither counsel nor the applicant provide any other supplemental documentation. 


2. 
Incorporated herein by reference are military records, as were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160019101, on 9 December 2019. 

3. 
A review of his service records show on 15 January 2008, at the age of 19 years, 11 months, and 4 days old, the applicant enlisted in the Army Reserve for 8 years, with 3 years and 16 weeks being service in Active Duty Obligation [Regular Army] and establishing his expiration term of service as 14 January 2011. The remaining military service obligation would be served in the Reserve Component. His Enlisted Record Brief shows: 


a. 
He is single and that completed his secondary education, with a test based equivalent certificate in 2004, approximately at the age of 16 years old. 

b. 
Upon completion of initial active duty training (IADT) for military occupational specialty (MOS) 11C (Indirect Fire Infantryman), he successfully completed training and became Airborne qualified.  The applicant's follow-on assigned was to Ranger Indoctrine Training Detachment on 30 June 2008, where he attended the Ranger Indoctrination Training Program and on 16 December 2008, he reported to his first unit of assignment, 2nd Battalion, 75th Infantry Ranger Regiment, Fort Lewis-McCord, WA with duty title shown as Ammunition Bearer. 

c. 
He was deployed to Afghanistan, for a period five months from 23 January 2009 to 18 May 2009. of The highest rank he held was private first class (PFC/E3) with a date of rank of 31 January 2009. 


4. 
On 20 September 2010, orders were published by Join Base Garrison, Joint Base-Lewis-McChord, WA assigning the applicant to the U.S. Army Transition Point for separation processing. The date of discharge shows as 29 September 2010 and Authority shows as "AR 635-200, CH (ES) [?]. On 21 September 2010 the order was rescinded. 

5. 
On 8 November 2010, orders were published by Join Base Garrison, Joint Base-Lewis-McChord, WA assigning the applicant to the U.S. Army Transition Point for separation processing. The date of discharge shows as 19 November 2010 and Authority shows as "AR 635-200, CH (ES) [?]. On 18 November 2010 the order was rescinded. 

6. 
A DD Form 2707 (Confinement Order) dated 11 February 2011, shows the applicant was confined as a result of a general court-martial. The sentence shows as six months' confinement and a Dishonorable discharge with an adjudged date of 11 February 2011. A Personnel Action shows on 11 February 2011 the applicant's status changed from Present for Duty to Confined by Military Authorities. On 14 February 2011, orders were published assigned him to Northwestern Joint Regional Correctional Facility, Joint Base Lewis-McChord, WA with a retroactive report date of 11 February 2011. 

7. 
A DD Form 2718 (Inmate's Release Orders) dated 7 June 2011 shows the applicant was to be released on 5 July 2011 for expiration of sentence. A Personnel Action shows on 5 July 2011, his duty status changed from Confined by Military Authorities to Present for duty. A DA Form 31 (Request and Authority for Leave) dated 23 June 2011 shows the applicant's request for excess leave, without pay and allowances, was approved from 5 July 2011 to 3 August 2011. 

8. 
Counsel provides as evidence in ABCMR Docket AR20160019101, a copy of a Memorandum [listed as Exhibit D], Department of the Army, U.S. Army Trial Defense Service, Region West, Fort Lewis, Washington, FOR Commanding, General, I Corps (Rear) (Provisional) and Joint Base Lewis-McChord, Washington, subject: Recommendation for Clemency in the case of U.S. v. [the applicant], dated 29 August 2011, signed by Lieutenant Colonel (LTC/O5) H___, Military Judge, it states: 


a. 
[LTC H__] support the defense request for clemency for [the applicant] on the grounds of contradictory findings of fact and an unusually severe sentence. 

b. 
On 9 February 2011, a panel with enlisted members acquitted [the applicant] of three specifications of Rape and their lesser included offenses of Aggravated Sexual Assault and convicted him of Wrongful Sexual Contract and Adultery. He received a sentence of 6-months confinement and a Dishonorable discharge. 

c. 
Rape, Aggravated Sexual Assault, and Adultery all require a finding of penetration. Wrongful Sexual Contact, requires the same mindset as Rape or Aggravated Sexual Assault, but does not require penetration.  Two fundamental legal questions were presented to the panel: (1) Did sexual penetration occur? (2) Was it consensual? Both sides offered evidence of three occasions of sexual penetration. The defense offered evidence that all the alleged sexual behavior was consensual. 

d. 
The panel's findings reflected that [the applicant] committed some non-consensual sexual touching of Ms. [Redacted] which was independent of consensual sex. That finding, while legal, is logically inconsistent considering all of the alleged behavior occurred over roughly 8 hours with the same accused. 

e. 
[The applicant's] Wrongful Sexual Contact conviction requires he register as a sexual offender. Such severe stigma flowing from such a factually ambiguous scenario counsels that justice is best served by the post-trial dismissal of Charge 1. 

f. 
[The applicant's] behavior is mitigated by the lack of evidence of serious impact on the unit or public perception of the military. A Dishonorable Discharge in this case is outside the common sentencing range for similar facts. For that reason, [LTC H__] supports approval of a discharge no more severe than a Bad Conduct Discharge. 


9. 
A DA Form 31 (Request and Authority for Leave) dated 7 September 2011 shows the applicant's request for excess leave, without pay and allowances, was approved from 7 September 2011 to Indefinitely. 

10. 
General Court-Martial Order Number 6 dated 15 September 2011 shows he was arraigned for: 


a. Charge 1: [UCMJ] Article 120, with the following four specifications, Plea: Not Guilty. Finding. Guilty 
(1) 
Specification 1: [the applicant], on or about 25 January 2010, cause SMB to engage in sexual act; to wit: penetrating her vagina with his penis, by using physical violence, strength, power, and restraint, by throwing her on a bed and pulling her toward him, sufficient that she could not avoid or escape the sexual conduct. Pleas: Not Guilty. Finding: Not Guilty 

(2) 
Specification 4: [the applicant], on or about 25 January 2010, cause SMB to engage in a sexual act; to wit: penetrating SMB's vagina with his penis by using physical violence, strength, power, and restraint applied to her legs sufficient that she could not avoid or escape the sexual conduct. 

(3) 
Specification 3: [the applicant], on or about 25 January 2010, cause SMB to engage in a sexual act; to wit: penetrating her vagina with his penis, by place her in fear of physical injury. Plea: Not Guilty. Finding: Not Guilty 

(4) 
Specification 4: [the applicant], on or about 25 January 2010, cause SMB to engage in a sexual act; to wit: contacting her vagina with his penis, and such sexual contact was without legal justification or lawful authorization and without permission of SMB. Plea: Not Guilty. Finding: Guilty 

b. 
Charge II: [UCMJ] Article 134. Plea: Not Guilty. Finding. Guilty. The specification, in that [the applicant] on or about 25 January 2010, wrongfully have sexual intercourse with SMB, a married woman not his wife. Plea: Not Guilty. Finding: Guilty 


11. 
A DA Form 31 (Request and Authority for Leave) dated 21 November 2011 shows the applicant's request for excess leave, without pay and allowances, was approved from 21 November 2011 to Indefinitely. 

12. 
Counsel provides as evidence in ABCMR Docket AR20160019101, a copy of the United States Army Court of Criminal Appeals Summary Disposition [listed as Exhibit F) dated 27 March 2013. It shows the applicant as the appellant and provides: 


a. 
A panel of officer and enlisted members, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of one specification of wrongful sexual contact and one specification of adultery. The panel sentenced him to a dishonorable discharge and confinement for 6 months. The convening authority approved only so much of the sentence that included a bad-conduct discharge and six-months confinement. The case is before [the court] for review under Article 66, UCMJ. The appellant claims that the specification for adultery does not allege the terminal elements as required by United States v. Foster, 70 M.J. 224 (C.A.A.F. 2011). In light of United States v. Humphries, 71 M.J> 209 (C.A.A.F. 2012), [the court] set aside the finding of guilty for adultery. 

b. 
The adultery specification does not allege the terminal elements under Article 134, UCMJ, and [the court] finds that there is nothing in the record to satisfactorily establish notice of the need to defend against a terminal element as required under Humphries. Therefore, [the court] now reverse the appellant's conviction for adultery and dismiss the defective specification which failed to state an offense. [The court] also considered the other assignments of error presented by the appellant and conclude they are without merit. 

c. 
The finding of guilty of Charge II and its Specification are set aside and dismissed. The remaining finding of guilty is AFFIRMED. Reassessing the sentence of the bases of error noted, the entire record, and in accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit, 63.M.J. 40 (C.A.A.F. 2006), to include the factors identify by Judge B____ in his concurring opinion, the sentence as approved by the convening authority is AFFIRMED.  All rights, privileges, and property, of which appellant has been deprived by virtue of that portion of his sentence set aside by this decision, are ordered restored. 


13. On 4 February 2014 orders were published reassigning the applicant to the U.S. Army Transition for processing to be discharged from the Regular Army effective 7 February 2014. His DD Form 214, shows he completed 5 years, 7 months and 13 days of net active service this period with 949 days of Excess Leave from 5 July 2011 ­7 February 2014 (creditable for all purposes except pay and allowances). He served 3 months and 26 days of Foreign Service, completed Airborne school and the Ranger Indoctrination Program, and was awarded or authorized: 
. 
National Defense Service Medal 

. 
Afghanistan Campaign Medal w/Campaign Star 

. 
Global War on Terrorism Service Medal 

. 
Army Service Ribbon 

. 
Overseas Service Ribbon 

. 
Combat Infantryman Badge 

. 
Parachutist Badge 


14. On 4 October 2016, the applicant petitioned the ABCMR (AR20160019101), requesting a personal appearance before the Board and upgrade of the applicant's bad conduct discharge to an honorable. in support of the petition counsel submitted the following evidence. After careful consideration of the applicant's petition, available evidence, which includes the ARBA Medical Advisory and Counsel's rebuttal, the Board concurred with the [ARBA] medical advisory finding insufficient evidence of in-service mitigating factors to overcome the misconduct and determined the character of service received upon separation was not in error or unjust and denied the applicant's petition requesting upgrade of his characterization of service to Honorable. 
. 
A self-authored statement from the applicant 

. 
Counsel Legal Brief 

. 
Exhibits A-C, three signed declarations from the applicant's chain of command 

. 
Exhibit D, Memorandum, U.S. Army Trial Defense Service, Region West, subject: Recommendation for Clemency in the case of U.S. v. [the applicant] dated 29 August 2011 

. 
Exhibit E, Medical Examination [11 November 2013, Division of Disability Determination Services, MDSI Physician Services, Ogden, UT 

. 
Exhibit F, U.S. Army Court of Criminal Appeal, Summary Disposition, dated 27 March 2013 

. 
Exhibit G, a copy of the applicant's DD Form 214 

. 
Exhibit H, Letter, Pacific Medical Centers, re: [the applicant] -Request for Bad Conduct Discharge Upgrade dated 4 August 2016 


15. Based on counsel's contentions of the ABCMR being arbitrary and capricious. In support of providing a clear, concise and factual Record of Proceedings for the Board to consider and make an impartial determination, the following information is provided regarding the evidence submitted by Counsel in support of ABCMR Docket AR20160019101. 
a. The applicant provided a self-authored letter, he states, in effect, that his combat-caused PTSD was a significant factor that contributed to the conduct that gave rise to his ultimate conviction for Wrongful Sexual Contact and Adultery. Joining the Army was something he dreamed about as a child and was honored to have the opportunity to service his country He excelled at Infantry training and was then given the opportunity to serve his country as a Ranger. He attended the Ranger Indoctrination Program (RIP). His class had a 60-75 percent washout [failure] rate, however, he graduated an was then assigned to 2nd Battalion, 75th Ranger Regiment. He was deployed to Afghanistan with the 75th Ranger Regiment from January to May 2009; during this deployment his life was in danger. Enemy forces directly shot at "them." It was traumatic. Such direct fire occurred on a daily basis. It had a profound effect on his life. 
(1) 
Upon returning from deployment he was not the same, among other things his judgement got worse, he craved adrenaline highs and was aroused easily. He did not know at this time that he had PTSD and that PTSD was cause by his combat experience. On 25 January 2010, he had sex with a female who, earlier, had been having sex with other members in my platoon. After having sex with her she told him she was married and then accused him of rape. He was ultimately charged with counts of forcible rape, threatened rape, wrongful sexual conduct [contact], and adultery. In February 2011 he was tried by a general court-martial and convicted of Wrongful Sexual Conduct [Contact] and Adultery. 

(2) 
His service in Afghanistan caused his PTSD and he believes his PTSD was a substantial contributing factor to the arousal and poor judgement that gave rise to the events that occurred on 25 January 2010, that led to his conviction and dishonorable discharge from the military. This belief is shared by his chain of command. He has submitted sworn declarations from my former platoon leader, platoon sergeant and section leader, as well as a letter from his treating physician. 

(3) 
On 11 November 2013 he was diagnosed with PTSD and on 3 July 2015 he was injured in a motorcycle that left him paralyzed. What he did was wrong and he accepts responsibility for his actions, however, he respectfully requests the Board to consider his PTSD as a mitigating factor for the misconduct that led to his bad conduct discharge and upgrade his characterization to Honorable; he intends to use his VA educational benefits to get a college degree, become a productive member of society, and focus on developing exercise programs that enable paralyzed individuals to get into good physical condition. 

b. 
Counsel's petition requests, in pertinent part, upgrade of the applicant's bad conduct discharge to honorable for the following reasons. The events giving rise to the applicant's discharge were caused by combat-caused by PTSD, which in turn, made his bad conduct discharge unjust; additionally, counsel requests the board support the petition for clemency under 10 U.S.C. § 1552(f)(2). The word clemency is important in this case. It means "mercy or leniency" regarding or relating to the power to "a commute a criminal sentence." Black's Law Dictionary at 200 (7th ed.2000). Simply stated: it is mercy the applicant seeks from [the Board]; ample evidence exi[s]ts to justify a grant of clemency. 

(1) 
Background. Counsel provides the details of the applicant's background (also addressed in the aforementioned paragraphs that address the court motion) regarding the applicant volunteering to join the Army during a time of conflict and serving in the 75th Ranger Battalion. Counsel refers to the applicant becoming a Ranger and addresses the sworn testimony [statements] submitted by the applicant's chain of command, specifically his section leader stating, " [the applicant] exercised sound judgment and the maturity expected of a young Ranger operating in a complex counter 

insurgency battlefield." During these complex times the applicant discharged his weapon and was shot by enemy forces, unaware at that time, that the stresses of the battlefield caused PTSD.  Upon returning from home, his performance began to deteriorate and on 25 January 2010, he had repeated sexual intercourse (over an eight-hour period) with a married female civilian, and was accused by that female, of rape. Ultimately the government charged him with Wrongful Sexual Contact and Adultery. 

(2) 
On 29 August 2011, LTC H___, the judge who presided over the general court-martial submitted a recommendation for clemency, "simply put: the trial judge concluded that it was illogical that the jury would find that wrongful sexual conduct [contact] occurred over an eight-hour timeframe in which the alleged victim had ample opportunity to extricate herself from the situation." Counsel provides a copy of the recommendation as Exhibit D. An ABCMR Analyst addresses the evidence in detail in an aforementioned paragraph. On 15 September 2011, the general court-martial order reflects the applicant was sentenced to six months' confinement and his Dishonorable discharge was upgraded to a Bad Conduct Discharge. Following his court-martial on 11 November 2013, the applicant was diagnosed with PTSD. 

c. 
Counsel provides Exhibit E, a copy of the applicant's medical examination from the Division of Disability Determination Services, Washington. A copy of this report is provided to the board in its entirety, it states, in pertinent part, the applicant is a 25-year­old single male, who arrives early, driving himself to the [medical] evaluation. He lives in his car, he is sitting alone, nervously in the waiting room and jumps with a very exaggerated startled reaction, when his name is called. Chief complaints are (1) Anxiety and (2) Depression. 

(1) 
Review of Records show on 10 September 2013, medication follow-up. Applicant states he would like in-patient treatment for PTSD, 27 September 2013, Follow-up behavioral health appointment. 3rd one for PTSD, 28 November 2012, triage assessment and Adult disability report, not dated, section 1-4. 

(2) History of Present Illness. 

(a) 
Anxiety. Reports having serious problems with panic attacks and PTSD after being deployed to Afghanistan. He has nightmares, re-experiencing, and symptoms of automatic nervous system hyper-arousal. He cannot go to shelters because he cannot eat around others and "bad-things" happen whenever he is around people so he stays away. He has attempted to get help, asked for inpatient treatment from the Veterans Administration. He was sent to Portand, however when he arrived he was advised they were not set up for serious PTSD treatment. He has been living in his car after being kicked out of his mother's home; his brother lives in an RV on his mother's property, the applicant will text his brother as a last resort when in need, but does not like to because all they do is fight. He is taking Klonopin for anxiety. 

(b) 
Depression. He reports feeling suicidal everyday with plans but no intention at the time. He feels frustrated and pushed aside when try to get help. He feels paranoid and reports auditory hallucinations of "just noises." He is taking Zoloft and Seroquel.  He is applying for disability to get medical coverage and have someone to talk to. 

(3) 
Past Psychiatric History.  Inpatient at Cedars in Portland (last month [October 2013]), a PTSD/addiction rehabilitation center, the applicant was advised he was too severe for them to treat and an appointment was scheduled for him at the Veterans Administration. He went to the Veterans Administration and was told he did not have an appointment. He denies suicide attempts and a family history of mental illness. 

(4) Past Medical History.  Low back pain, knee pain, chronic joint pain 

(5) 
Family, Social and Employment History. Never married, no children and has not talked to his dad in Texas for a few years.  He has been living in his car for the past nine-months.  He graduated high school on time with no special education. He did not go to college. He enlisted in the Army for five years he was a Ranger, he completed his service and then was forced out on a DD 212 release from the military in July 2012.  In the Army, he was convicted and spent five months in Army prison for Wrongful Sexual Contact and Adultery without penetration. He was deployed to Afghanistan for four months and describes it as traumatic. He fired his weapon and killed people which weighs heavily on him now. People should not have to kill innocent people. He was fired at, feared for his life, did not have any buddied killed, but did have to observe atrocities, he drove a truck, but reports having panic attacks and feeling like a danger to himself and others. 

(6) 
Alcohol and Drug Abuse. Does not smoke cigarettes. His last use of marijuana was two months ago to decrease his pain. He does not use street drugs; he occasionally has alcohol. The last time he got drunk was a "few days ago to sleep." He has not done a chemical dependency treatment. 

(7) 
Activities of Daily Living. He cannot sleep well in his truck. He only goes grocery shopping if the store looks nearly empty. He stocks up on food in his truck. Sometimes his brother gives him money. He bathed in the summer in the river, sometimes he bathes at the gym. He showered last about a month ago (noted it took a long time for the applicant to answer the question). He continues to wear the same clothes and only changes once a week sleeping in them as well. He checks his email on his phone; his mom has him on the family plan. He knows how to text message but only texts his brother. He used to work out at the gym and really wants to help others get fit; he wanted to be a personal trainer. Now he only cares about himself and doesn't get enjoyment out of doing anything. 

(8) 
Concentration, Persistence, and Pace. He has difficulty concentrating. He cannot persist to finish tasks, and his pace is slow. 

(9) Mental Status Examination. 

(a) 
General Appearance.  Describes the applicant's height, weight, and indicates he is a young adult, who looks younger than his stated age of 25. He has messing light brown hair, a straggly beard and moustache. He has prominent body odor and observed as have no difficulty standing, sitting, or walking. 

(b) 
Attitude & Behavior.  He has almost no eye contact, severely agitated and noticeably jumps in chair while in the waiting room when his name was called. Barely able to sit throughout the evaluation, to the point where he is offered to get up and leave for a breath of fresh air. He stayed to finish the evaluation. He is somewhat cooperative and somewhat passive, does not answer some questions or takes a very long time to answer. He appears distracted by internal stimuli, severe anxiety and agitation. 

(c) 
Steam of Mental Activity/Speech.  His thought processes are tangential. It appears difficult for him to talk due to severe anxiety, with shallow, fast, and labored breathing. He appears extremely frightened 

(d) 
Content of Thought. The applicant reports suicidal ideations every day and that life is not worth living. He endorses questionable intention or plan to act on suicidal ideation. When asked about homicidal ideation and intention, he states, "only if I have to." He reports paranoid ideation of "people are always trying to get me and harm me. People are bad. People are sick." He has not plan or intention of acting on homicidal thoughts. He hears noises when no one is there and denies visual hallucinations. 

(e) 
Mood/Affect. He reports his mood as "nervous, frustrated, pushed aside when trying to get help." His affect is very irritable and restricted to numb. 

(10) 
Intellectual Functioning/Sensorium. 

. 
ORIENTATION:  Oriented to all spheres 

. 
MEMORY. 

. 
Immediate. He recalls six digits forward, six digits backward 

. 
Recent. recalls none of 3 objects after 5 minutes and none with hints 

. 
Past: He recalls his date of birth, phone number, and address 



. 
FUND OF KNOWLEDGE / INFORMATION: He names the President and vice president. He cannot name a single current 

. 
CALCULATIONS: when asked to perform serial 7s backwards from 100, he states, " 93, 86" and stops. On serial 2s backwards from 20, he states, " 18 " followed by silence. He states there are nine quarters in 

$ 2.25. 

. 
CONCENTIUITION: He follows a three-step command. He spells the word WORLD, as in the whole, wide world, "wold" and backward he spells it "dlow" 

. 
ABSTRACT THINKING: When asked what people mean when they say, the grass is always greener on the other side, he states, things are better somewhere else 

. 
SIMILARITIES/DIFFERENCES: A dog and a lion both have four legs. "They differ in one is a dog versus one is a lion" 

. 
JUDGMENT/ INSIGHT: If the claimant smelled smoke in a crowded movie theater, he states, he does not go to theaters. When asked what he should do, he states, "F-ing say fire. I don't know." 



(11) 
DSM-IV DIAGNOSIS. 

. 
Axis I: Posttraumatic stress disorder Major depressive disorder, single episode, severe with psychotic features 

. 
Axis II: None 

. 
Axis III: low back, knee and joint pain 

. 
Axis IV: Forced out of the military Military conviction involving Wrongful Sexual Contact Homeless, living in his car Financial and Social Problem 

. 
Axis V: Current GAF is 35 due to suicidal ideation with plans and questionable intent, auditory hallucination, homicidal ideation, and not taking care of his basic hygiene. 





(12) 
DISCUSSION/PROGNOSIS: The applicant's problem is treatable. The likelihood of recovery is guarded. The condition will continue for 12 months and could improve thereafter with treatment compliance. 

(13) 
FUNCTIONAL ASSESSMENT/MEDICAL SOURCE STATEMENT. Not capable currently of managing his funds and requires a payee. Has the ability to perform simple and repetitive tasks and some detailed and complex tasks. He would have difficulty accepting instructions from supervisors. Some of the questions I ask, he does not answer. He would have difficulty interacting with coworkers and the public. He is isolating himself in his vehicle, and he only enters a grocery store when it looks like it is almost empty. He is severely anxious, nearly jumping out of his seat when his name was called. He would have difficulty performing work activities on a consistent basis without special or additional instruction. He would have difficulty maintaining attendance in the workplace as he currently appears anxious, agitated, psychotic, homicidal and suicidal. He would have difficulty completing a normal workday/workweek without interruption from a psychiatric condition and he would have difficulty dealing with 


the usual stress encountered in the workplace. His anxiety level i s very high with an observed exaggerated startle reflex and labored breathing from anxiety. He barely made it through the 45-minute evaluation. 
d. Following his PTSD diagnosis, in July 2015, he was rendered partial paralyzed in a motorcycle accident. He is now wheelchair bound and will be for the rest of his life. Counsel states the applicant's treating physician, Dr. B__, opines that his PTSD was a substantial contributing factor to the 25 January 2010 events giving rise to his court-martial conviction and his leadership agrees. In support of the petition counsel provides Exhibits, A, B, C, and H.    
(1) 
Exhibit A, a statement from P__, a medically retired sergeant first class (SFC/ E7), who served 11 years, 11 months, and 18 days in the U.S. Army's 2nd Battalion, 75th Ranger Regiment, Joint Base Lewis-McChord, WA. He states, in effect: 

(a) 
The applicant was assigned to his platoon from mid-to-late 2008 through January 2010.  If the applicant was to be disciplined, he would have been aware because as his section leader, he had knowledge of his day-to-day performance. To the best of his recollection the applicant did not having any indiscipline from mid-2008 through the January 23 -May 18, 2009. He also does not recall any instances of insubordination, failure to report on time, or disorderly conduct. The timeframe he provides is significant because it was encompassing of a combat tour in Afghanistan, where he led the applicant, who participated in direct fire combat. The applicant's performance was extraordinary prior to and during this deployment; figuratively speaking, the applicant "would run through a brick wall for us." Ryan exercised sound judgement and the maturity expected of a young Ranger operating in a complex counterinsurgency battlefield. 

(b) 
In the January 2010, timeframe I understand that Ryan had (what was later found to have been) non-consensual sex with a married woman and that although this woman had previously been sleeping with some his platoon-mates a jury convicted him of wrongful sexual conduct and adultery. I know this because I provided testimony on his behalf as part of the case. The actions regarding the January 2010 incident were definitely out of character. Upon his redeployment his demeanor changed. His drinking increased and he was subject to discipline His conduct was out of character. 

(c) 
He has been made aware that the applicant was diagnosed with PTSD and it is his belief that PTSD played a significant factor (if not the sole factor) in what the applicant did in January 2010. He believes the applicant's performance changed, for the worse, after the above-referenced deployment; he knows this because he has also been diagnosed with PTSD. The applicant's actions are consistent with his personal experiences and observations regarding PTSD to the extent that PTSD impairs ones' judgement. 

(2) 
Exhibit B, a statement from Mr. D__, served as a captain in the 2nd Battalion, 75th Ranger Regiment during 2008-2010, he served as the applicant's platoon leader and attests, exactly as does Mr. P__, regarding the applicant's character and performance pre/post deployment and indicates his awareness of the January 2010 incident where he was convicted by a court-martial and being made aware of the applicant's diagnosis of PTSD, and states that he has served around other Soldiers with PTSD and it has been his experience that those with PTSD, at time, have trouble with relationships. Since the facts give rise to his court-martial arose out of a relationship and were out of character with the applicant pre-deployment, it is his belief that the PTSD played a big part in the January 2010 incident.      


(3) Exhibit C, a statement from first sergeant T__, who is currently serving in the 
U.S. Army. He served in 11 combat tours. He was assigned to the 2nd Battalion, 75th Ranger Regiment during 2008-2009, where he served as the platoon sergeant for the battalion's mortar platoon and attests, exactly as Mr. P__ and D__, regarding the applicant's character and performance pre/post deployment and indicates his awareness of the January 2010 incident where he was convicted by a court-martial and being made aware of the applicant's diagnosis of PTSD. He states the applicant's conduct regarding the January 2010 incident is different (read: worse) than before and during his deployment.  I have served around other Soldiers with PTSD and it has been my experience that those with PTSD, at times, have trouble with relationships. Since the facts giving rise to the court martial arose out of a relationship and were out of character with the applicant, he led before the deployment and it's his belief that the applicant's PTSD played a significant part in the January 2010 incident. 
(4) 
Exhibit H, a letter from Dr. B__, a Family Physician, to the Army Review Boards Agency, she requests that this letter be accepted on behalf of the applicant. The purpose of this letter is to explain her qualifications and educational background, her knowledge of the applicant's pre and post military service behavior, and offer her opinion that the PTSD the applicant incurred while serving in combat was a substantial contributing factor to the misconduct that resulted in his Bad Conduct Discharge from the U.S. Army. She states, in effect: 

(a) 
She is currently employed with Pacific Medical Centers as a Family Physician and Medical Director of the clinic. Day-to-day duties include predominantly evaluating and treating patients of all ages as a primary care provider. Pacific Medical Centers has a contract with the Department of Defense to provide health care to eligible military members and families. This is the only contract for the United Services Health Plan in the state of Washington and take pride in giving them the best care possible. She has the privilege of interacting with a wide spectrum of patients (and their families) who have dedicated their lives to a career in the military and has learned a great deal from them regarding their experiences. 

She has treated individuals with PTSD and have done so for 9 years, as such, she has gained a familiarity with PTSD's causes, symptoms, and treatments, and indicates a copy of her curriculum vitae is attached to her letter. 

(b) 
She met the applicant was he was eight years old. His mother, was her very first nurse in her clinic in Texas. His mother taught her a lot of things about caring for people that she didn't learn in medical school. She had a very close personal relationship with their family and was the family physician to many of them, including the applicant. She was frequently invited to their homes for all types of social occasions and the applicant's grandfather (a World War II vet still going strong today) still calls me his "other daughter".  His mother was a single mother at the time with two young sons who she [Dr. B__] always thought were complete opposites. His older brother was always boisterous, outgoing, and joked all the time, while he was serious, quiet, and hard working. He never got in trouble at school, was a good student, and selective about his circle of friends. His mom always praised him at work for his preference to keep everything tidy and in place at home. 

(1) 
The local high school had a negative reputation. His sophomore year of high school his mom entered him in the Seaborne Military Academy. Seaborne was well known for excellence. It was the perfect choice. He loved it there and the only change I noticed was that he seemed to develop more confidence in that setting. He was a good teenager overall and followed the rules. She has a daughter the same age and remembers thinking "it must be nice to have such an easy teenager to raise". It seemed like a natural progression when he graduated the military academy and entered the Army. She did not see him much during his Army training but his mother was very proud and would share how well he was doing. My impression was that he was still the hard working, serious, and determined person she knew as a kid. 

(2) 
The next time I spent time around him and his family was after he came back from deployment to Afghanistan. He seemed different. He was more aloof, would argue aggressively with his mother and easy to anger. He was frequently sleeping all hours of the day. He didn't seem to enjoy much and his emotions were so flat; she felt it was hard to talk to him beyond saying "hi" and giving him a hug. It was clear that his experience in Afghanistan had deeply affected him and these changes in his personality took time to understand 

(c) 
She interviewed the applicant on 2 August 2016 and reviewed his social security file, documents regarding his court-martial, his application for U.S. Department of Veterans Affairs benefits, his medical records that are maintained in her office, his explanation for the conduct that resulted in his separation from the U.S. Army, documents from his section and platoon leaders and the DSM IV. Following the review of records and the interview she applied the relevant DSM IV factors regarding PTSD to the facts of his court-martial, as she understands them. She provides a summary 

timeline showing his assignment to the 75th Ranger Regiment, period of deployment, date of the offense(s), period he was court-martialed, and the post-service dates he was diagnosed with PTSD by DDS for social security benefits and injured himself in a motorcycle accident and opines that his combat-caused PTSD was a substantial contributing factor to the conduct giving rise to his discharge from the Army. 

(1) 
The applicant was already diagnosed with PTSD prior to her resuming his medical care as his family physician. She was not surprised; she had seen many of the changes herself in the family setting. he DSM-5 has updated the diagnostic criteria of PTSD to include two new clusters of behavioral symptoms 

. 
Negative cognitions and mood; and 

. 
Arousal 



(2) 
Based on her knowledge, his traumatic experiences in Afghanistan, and the circumstances leading to his release from the army under dishonorable discharge, it is both my personal and professional opinion that PTSD and in particular these symptoms played a significant role in his actions. It is well known that PTSD causes impairment in social interactions, detachment, and distress in relationships. He clearly deviated from his normal pattern of behavior when he engaged in the intimate sexual relationship that ultimately resulted in his conviction of wrongful sexual conduct and adultery. He had a strong positive reputation amongst his colleagues based on a history of personal responsibility and accountability. PTSD on the other hand is associated reckless and self-destructive behavior. Unfortunately, he continued to struggle with the effects of PTSD on his life. 

(3) 
After his military discharge, he was limited in his ability to seek medical treatment. Last year [2015] he almost lost his life in a motorcycle accident. Though he cannot recall the accident, the first responders reported that it was obvious he was going at a high rate of speed, in the dark, and under wet conditions. He was thrown off his bike so far into the woods it took several attempts before his friends could find him. He sustained a near fatal head injury that left him in the neurologic-intensive care unit (ICU) with a very poor prognosis for a week before he stabilized. He also sustained a burst fracture of his thoracic vertebra that has resulted in complete paralysis from the waist down. This is a young man who never even got a speeding ticket in high school. His story is a classic demonstration of the catastrophic impact untreated PTSD can have on a person's life. 

e. 
Counsel provides the following legal analysis and argument and refers to the Secretary of Defense Memorandum dated 3 September 2014 that provides supplemental guidance to military correction boards considering discharge upgrade requests for veterans claiming PTSD. The memorandum contains medical guidance and guidance to the Boards which mandates BCMR's consider mitigating factors in 

determining whether to upgrade a service member's military discharge as it relates to service-caused [connected] PTSD. 

(1) 
Regarding the medical guidance, the attachment provides, in part, that "liberal consideration will be given in petitions for changes in characterization of service to Service treatment record entries which document one or more symptoms which meet the diagnostic criteria of [PTSD] or related conditions." As it relates to the applicant he was unaware of his PTSD until his military discharge. The medical guidance provides that "liberal consideration will also be given in cases where civilian providers confer diagnosis of diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomology at the time of service, or when any other evidence may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under than honorable conditions characterization of service." 

(2) 
Counsel refers to a dissenting opinion written by a judge on the military appellant court in the context of a highly decorated Marine regarding the illustrative interchange between a punitive discharge, a court-martial, and a combat veteran's PTSD. 

(a) 
The Marine, (noted by counsel to be unlike [the applicant] in this instance) grabbed his stepdaughter by the hair, threw her down the stairs (headfirst), and then subsequently lied about it to criminal investigators. The appellate judge opined that Dishonorable Discharge given to the Marine was unduly punitive. Counsel cites in his notes, United States v. Lefevers, No. NMCCA 20 14003 1 2, 20 1 5 WL 3820 178, at *5 (N-M. Ct. Crim. App. June 1 8, 2015), review denied, (C.A.A.F. Dec. 1, 2015). 

(b) 
Counsel contends, to that end, if it is appropriate for at least one military appellate judge to opine that a service-member's PTSD should be considered as a mitigating factor in the context of a punitive discharge when that service member physically assaulted a young child and lied about that assault to criminal investigators, then it is very appropriate that PTSD should be considered as a mitigating factor so as to grant clemency and upgrade the applicant's Bad Conduct Discharge to Honorable. 

(3) 
Counsel contends that the Secretary of Defense guidance also states that the BCMR should give "consideration of mitigating factors" vis-a-vis cases that "in which PTSD or PTSD -related conditions may be reasonably determined to have existed at the time of discharge" and that "those conditions will be considered potential mitigating factors in the misconduct that caused the other than honorable conditions characterization of service." 

(a) 
This is what the applicant requests in this case. While that is true that he was tried and convicted via general court-martial it is also true that his conviction turned 

on whether the jury found his accuser or more believable. A classic "he said, she said" case. The jury apparently (partially) believed his accuser and sentenced him to six months' confinement and a Dishonorable Discharge, which was upgraded to a Bad Conduct Discharge. However, the trial judge disagreed with the jury's finding and in submitted a memorandum requesting that the applicant be given clemency because the jury's verdict that he wrongfully engaged in sexual conduct with the accuser was inconsistent with the fact that the sexual conduct occurred over an eight-hour timeframe. 

(b) 
On 27 March 2013, the United States Army Court of Criminal Appeals dismissed the Adultery charge. In light of (a) the "he-said-she-said" nature of the case, 

(b) 
the trial judge's clemency request, (c) the dismissal of the adultery charge, (d) the PTSD-caused conduct that gave rise to the court martial, (e) the fact that he served his six-month prison sentence, and (f) his chain of command's statements regarding his positive performance in combat, the applicant respectfully requests that his Bad Conduct Discharge be upgraded to that of an Honorable Discharge. For the Bad Conduct Discharge is unnecessarily punitive and serves no reasonable deterrent effect. The applicant is now wheelchair bound and will remain in a wheelchair the remainder of his life. The likelihood of him repeating the conduct for which he was convicted is virtually non-existent. 


16. On 17 September 2018, ARBA Case Management Division requested a medical review be conducted for ABCMR Docket 20160019101, requesting the ARBA Clinical Psychologist/Psychiatrist review his petition [application], associated records, including available medical documentation and address the following questions and to include any additional information deemed appropriate. 
a. 
Does the available record reasonably support PTSD, or another boardable [sic} behavioral health condition(s) existed at the time of the Applicant's military service? 

b. 
Did this condition(s) fail medical retention standards in accordance with AR 40­501, warranting a separation through medical channels? 

c. 
Is this condition(s) a mitigating factor in the misconduct that resulted in the Applicant's discharge from the military? 

d. 
[for UOTH cases only insert the following:] In accordance with Title 10, Section 1177, was the required medical exam, which includes a behavioral health component, conducted prior to administrative separation? 


17. A memorandum, Army Review Boards Agency, subject: Advisory Opinion for [the applicant] dated 18 November 2019. The signature block shows it was digitally signed on 17 November 2019, specific information pertaining the name of the official who submitted the Advisory Opinion is redacted. 
a. The advisory provides the following references and documents were used in the review of the applicant's petition and medical review. 
(1) Diagnostic and Statistical Manual of Mental Disorders-5th Edition. 
(2) 
Army Regulation 40-501, Standards of Medical Fitness, RAR003, 04 August 2011 

(3) 
Army Regulation 635-200, Active Duty Enlisted Administrative Separations, 6 September 2011 

(4) 
Memorandum, Secretary of Defense, 3 September 2014, Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress Disorder 

(5) 
Army Directive 2014-28, Requests to Upgrade Discharge by Veterans Claiming Post-Traumatic Stress Disorder, 3 November 2014 

(6) 
Applicant's petition [ABCMR Application dated 10 April 2016) 

(7) 
The applicant's electronic military records 

(8) 
The applicant's electronic military medical records; and 

(9) 
The applicant's electronic VA medical Record. 



b. 
The agency psychologist states, in pertinent part, the review of electronic records indicates the applicant has not received, been evaluated or treated in the VA system. The system does not show he has a service connected disability rating.  Review of his electronic military and military medical records show he joined the Army, was assigned to the 2nd Ranger Battalion at Fort Lewis and deployed to Afghanistan from 23 January 2009 to 18 May 2009.  The applicant was found guilty at a general court-martial of unlawful sexual contact and adultery; he was sentenced to 6 months' confinement and a bad conduct discharge. 

(1) 
He was confined from 11 February 2011 to 5 July 2011, none of the medical encounters [records] during confinement were for behavioral health issues. 

(2) 
On 20 October 2012, he reported symptoms of depression during a primary care appointment and was referred to a behavioral health provider. He was seen for 


several triage appointments from 31 October to 11 December 2012.  His primary concerns were depressive symptoms, agitation and difficulty getting along with others. 
(3) On 24 November 2012, his parents kicked him out, leaving him homeless. 
(4) 
On 31 January 2013, he was diagnosed with Major Depressive Disorder and Anxiety Disorder. On 24 April 2013, he was referred to Tacoma Veterans Center for further behavioral health care. He continued to receive support telephonically from May -August 2013 as part of the RESPECT-MIL program to connect with community support and him with Medic-aid application. On 22 August 2013, he was diagnosed with PTSD during a primary care appointment. 

(5) 
On 16 January 2014, the appellate authority set aside and dismissed the specification of adultery and affirmed the specification of unlawful sexual contact and authorized the bad conduct discharge.  On 2 February 2014, he was discharged. 

c. 
In regards to the question(s) requested to address in the review and in accordance with the Secretary of Defense Liberal Guidance Memorandum dated 3 September 2014: 

(1) 
There IS documentation to support the existence of a behavior health condition at the time of the discharge. 

(2) 
The available records indicate that the applicant DID meet medical retention standards with respect to behavioral health diagnosis according to Army Regulation 40­501; and 

(3) 
PTSD is NOT considered a mitigating factor for the misconduct [Wrongful Sexual Contact] that led to his discharge. 


18. On 22 November 2019, ARBA sent a letter to the applicant, provided a copy of the medical advisory and indicated, in pertinent part, "The ABCMR can adopt the advisory opinion recommendation in whole, in part, or reject the recommendation, based on the Board's analysis of the facts and circumstances of his case." The applicant was given 15 days from the date of the letter to allow him the opportunity to submit comments on the enclosed advisory opinion. On the same day, Counsel, on behalf of the applicant, submitted a written rebuttal and provided a 4-page copy of Dr. B___'s Curriculum Vitae [short written summary of a person's career, qualifications, and education]. Counsel provides the following reasons the reviewing authority (hereinafter "BCMR" [ABMCR]) should reject the Agency Advisory Opinion's conclusion that [the applicant's] PTSD was not a mitigating factor in his misconduct. 
a. 
First. The unnamed Agency psychologist does not explain why he or she reached the conclusion that PTSD played no role in his misconduct. This omission is fatal. The unnamed Agency psychologist admits to having reviewed [the applicant's] petition, which contains sword testimony from Dr. B___ that PTSD played a significant factor in the conduct giving rise to his misconduct but makes no attempt to rebut the factual or legal bases for Dr. B__'s conclusions.  The agency fails to identify the psychologist, which in turn disallows the applicant the opportunity to determine whether that psychologist's education and experience even allow him or her to reach the opinion that they reached. 

b. 
Second. The unnamed Agency psychologist's unsupported opinion that his PTSD played a role in the misconduct is legally unreliable because he or she fails to not only address Dr. B___'s medically and factually based opinion but fails to explain why he or she did not rule out Dr. B___'s conclusion.  As it relates to expert medical testimony, the law requires that "the expert must explain why alternative hypotheses as to causation are ruled out using scientific methods and procedures [and that] this elimination must not be founded on subjective beliefs or unsupported speculation." Luttrell v. Novartis Pharm Corp. 894 F. Supp. 2nd 1324, 1338 (E.D. Wn. 2012) (citing Clausen v. M/V NEW CARISSA, 339 F. 3d 1049, 1057 (9th cir.2003) (internal quotations and citations omitted)). The unnamed Agency psychologist simply states "PTSD IS NOT considered a mitigating factor for the misconduct that led to his discharge." (11/1819 Advisory Opinion, paragraph 7(c)). No attempt is made to rule out Dr. B___'s conclusion which in turn, renders the Advisory Opinion legally unsupportable. 


c. Third, the Agency Advisory Opinion’s unsupported conclusion that [the applicant's] PTSD did not contribute to his misconduct is also inadmissible as a matter of law because the opinion does not describe the scientific method by which that conclusion was derived. A court determines admissibility of expert testimony by first considering whether the “experts' testimony reflects scientific knowledge, constitutes good science, and was derived by the scientific method.” Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1396 (D. Or. 1996)(internal quotations omitted). Since the unnamed Agency psychologist’s opinion contains no explanation as to the scientific method used to reach his or her conclusion a federal court reviewing the BCMR’s reliance on the Advisory Opinion would likely find such reliance in error. 
19. At the time of the decision of the ABCMR in Docket Number 20160019101 dated 9 December 2019, it was the intent of the ABCMR to comply with law, policy, regulation, and the Secretary of Defense published guidance to BCM/NRs pertaining to liberal consideration, clarifying guidance and Clemency, to: 
. 
Determine if the applicant had a condition or experience that may excuse or mitigate the discharge? 

. 
Determine if the condition existed or experience occurred during military service? 

. 
Determine if the condition or experience actually excuses or mitigates the discharge? 

. 
Determine if the condition or experience outweighs the discharge? 


20. Review of ABCMR Docket Number 20160019101 does not reveal a Report of investigation (ROI); In order to complete the record for Board review of this Record of Proceedings, the Criminal Investigation Division provided a sanitized ROI; it provides the following information. 
a. A Military Police Report, provides in part, a sexual offense occurred on 25 January 2010, between the hours of 0445 and 0645. 
(1) 
On 28 January 2010, the station was notified by CID of Rape of an Adult by Force. Preliminary investigation revealed [redacted] returned to the barracks with the applicant after a night of dancing. The applicant asked [redacted] to "cuddle" and she told him no. The applicant picked her up and to her to the bed and began to remove clothing. [Redacted] tried to pull her clothing back on and repeatedly told the applicant to stop and that she did not want to have sex with him. The applicant forcibly held [redacted] down and penetrated her multiple times.  The applicant was interviewed and invoked his right to legal counsel. Investigation continues by CID. 

(2) 
A first supplemental report, investigative summary shows the Fort Lewis, WA Sexual Assault Coordination notified CID that Mrs.__ reported she was sexually assaulted by the applicant in his barracks room on 25 January 2010. The investigation determined the applicant committed the offense of Rape, when he forcibly engaged in sexual intercourse with her despite her protest and physical resistance.  During a pre­text phone call, Mrs. __ asked the applicant, "Did you hear me say no?" and he replied "I felt like after my roommate you would be ok with it. I am sorry, it is all my fault. I am sorry for everything that happened, I know it happened really wrong. I regret it so much." Further investigation determined there were minor damages to her leggings and underwear, but the damages were consistent with normal wear accord to the U.S. Army Criminal Investigation Laboratory.  CPT __, Trial Counsel, office of the Staff Judge Advocate, opined probable cause existed to believe the applicant committed the offense of Rape.  On 11 Feb 11, the applicant was tried by General Court-Martial and found guilty for the offenses of Wrongful Sexual Contact and Adultery. He was sentenced to six months' confinement, with a Dishonorable Discharge and required to register as a sex offender. 

b. 
A commander's Report of Disciplinary Action or Administrative action shows on 29 August 2010, failed to obey general order -paraphernalia (Article 92 UCMJ). Action taken shows as Judicial, civilian or magistrate criminal court; with Remarks "NO ACTION TAKEN, SM WAS TRANSFERRED OUT OF UNIT." A Military Police Report shows on 29 August 2010 at 0334 hours the station was notified by DSS that the 


applicant had possible drug paraphernalia in his vehicle. Preliminary investigation revealed that there was a smoking device in his vehicle. K-9 unit searched the vehicle which resulted in negative findings. The applicant was advised of his legal rights, which he invoked and refused to write a statement. 
c. 
A commander's Report of Disciplinary Action or Administrative action shows on 12 October 2009, Larceny of Private Property, Article 121, UCMJ. Commander's Remarks state, the ADMIN Section has exhausted all means in receiving a final disposition. This case is administratively closed. No Action Taken Reason: [blank]. A Military Police report shows the incident occurred on12 October 2009 at 0225 hours. [Redacted] reported that the applicant removed vehicle #1 [2007, Red Kawasaki, owned by Delaney Group] from a construction site that was unsecured and unattended and attempted to sell it to him. Upon arrival of the Military Police, contact was made with [redacted] who refused to make a written sworn statement. The applicant and __ were apprehended, searched and transported to the Military Police state where they were advised of their legal rights, which the applicant waived, rendering a written sworn statement admitting to the offense. 

d. 
A Commander's Report of Disciplinary or Administrative Action shows on 19 December 2009, Civil Charge, Assault (Alcohol); Action Taken-Judicial, Civilian or Magistrate Criminal Court with remarks, on 1 February 2010, the applicant appeared in Seattle Municipal Court, no charges were filed. Case Closed. A Military Police Report shows on 19 December 2009 at 0201 hours the station was notified by court liaison [redacted] that on the aforementioned date, the Seattle Police Department responded to a disturbance.  Investigation revealed that the applicant and [redacted] were creating a disturbance and were approached by [redacted], bar security. The applicant then struck [redacted] in the head with a closed fist. Upon arrival of [redacted] the applicant was arrested.  The applicant and [redacted] were reported to be under the influence of alcohol. 

e. 
A Military Police Report shown on 12 December 2010, at 1130 hours to end dated 18 March 2011 at 1300 hours, Larceny of Private Property (Article 121 UCMJ). On 13 December 2010, the station was notified by [redacted] of a larceny of private property. Investigation revealed person unknown by means removed (1) Glock 19, 9mm Pistol owned by the applicant, which was secured and unattended.  On 21 March 2011 the station was notified by the executive officer, 2nd Battalion, 75th Ranger Regiment, that the missing pistol was located in the unit arms rooms and subsequently removed on 29 March 2011. 


21. 
On 10 March 2022, the Army Review Boards Agency provided a copy of the CID Report of Investigation in its entirety to the applicant advising him the processing of his application would be on hold for 15 days from the date of the letter to allow him the 

opportunity to submit comments or additional documentation on his behalf, neither the applicant nor Counsel responded. 

22. 
On 15 April 2022, the Army Review Boards Agency provided a medical advisory which is included in its entirety for the Board to review, it states in effect, the applicant's DD Form 149, supporting documentation, official military personnel records, VA electronic medical record, Joint Legacy Viewer (JLV), civilian medical documentation and the military electronic medical record (AHLTA) were reviewed. 


a. 
The ARBA Psychologist acknowledges the letter submitted from a family physician and medical director dated 4 August 2016 that provides the personal and professional opinion that, in this particular case, PTSD symptoms played a significant role in the applicant's actions that led to his discharge. 

b. 
Review of the applicant's medical records in JLV did not indicate any service connected disabilities. 


(1) 
A Behavioral Health (AHLTA) note, Madigan Army Medical Center dated 28 November 2012, indicated: 

“’Service member presented in a distressed, agitated state. He related that after a fight in a bar on Saturday, he returned home, and his parents kicked him out at their home…SM became extremely agitated, started ringing his hands through his hair and shaking his legs…and expressed he was tired of discussing his unusual military status with different providers…SM became increasingly agitated and stormed out of the office, stating that he ‘is just f__ing done’…SM apologized for his behavior and was willing to engage over the phone.’” 

(2) 
A Military Family Practitioner Acute Care Team (AHLTA) note, Madigan Army Medical Center dated 27 September 2013 shows the provider diagnosed him with "Post Traumatic Stress Disorder, Homeless", and indicated the: 


“’Patient reports he continues to sleep in car and as weather gets colder it is more difficult to sleep. He is taking sleep medication but sleeps only about two hours at a time due to nightmares, as well as cold weather and discomfort…PT reports 4-month deployment to Afghanistan as a Ranger…Patient became agitated when discussing the deployment, stating his unit ‘did a lot of wrong stuff’…He states he has many memories that will never go away…After he returned from deployment, he states he didn’t respect his leadership and they were happy ‘to hide him in a corner somewhere.’ He drank alcohol 
excessively. Then an incident occurred in 2010 in which he was accused of sexual assault. After a lengthy process, he ended up being convicted of wrongful sexual contact w/o penetration and adultery. He spent six months at the RCF at JRLM. He was then released, but remand on active duty on appellate leave as there were still appeals pending. For 6 months, he lived with his mother, however their relationship has soured and he has been homeless for 8 months.’” 
(3) An AHLTA clinical note dated 20 December 2013 reported that the applicant 
was “still living in car” with an “increase of nightmares” with about a month and a half left before his discharge. The Problem List included “Post-Traumatic Insomnia, Phase of Life or Life Circumstance Problem; Homeless; Nightmare Disorder; Anxiety; Posttraumatic Stress Disorder; Anxiety Disorder NOS; Depression; Major Depressive Disorder, Recurrent. Severe without Psychotic Features; and Adjustment 
Disorder w/Depressed Mood.” 
c. Based on a review of all information, including information in the applicant’s medical record, it is the opinion of the Agency psychologist that there is no mitigating Behavioral Health conditions. Problems arising from Posttraumatic Stress Disorder (PTSD) often contribute to self-isolation, anger outbursts, aggressive behavior, intrusive memories, nightmares, interpersonal difficulties, poor sleep and self-medicating with drugs/alcohol. Wrongful sexual contact (i.e. unwanted sexual contact) is not part of the natural history or sequelae of PTSD, or other behavioral health conditions, and, as such, is not mitigated under Liberal Consideration. 
23. On 22 April 2022 the Army Review Boards Agency provided a copy of the medical advisory in its entirety to the applicant advising him the processing of his application would be on hold for 15 days from the date of the letter to allow him the opportunity to submit comments or additional documentation on his behalf. On 22 April 2022, Counsel responded and enclosed a rebuttal to the medical advisory opinion.  Counsel note, "that unlike the Army's unnamed [ARBA Psychologist), Dr. B__ declares a reasonable degree of medical certitude that the applicant's misconduct was caused by his combat caused PTSD. 
a. Unlike the Army's medical opinion, Dr. B__ cites two studies, obtained for the National Institute of Health, that link high risk sexual behavior (i.e. the conduct that the applicant was convicted of) is a symptom (or sequelae) of PTSD.  One study concludes the following. The applicant's having sex with a person who was not his exclusive partner fits the definition of high risk sexual behavior. 
"Research has shown that Veterans with greater PTSD symptom severity were more likely than those with less severe symptoms to endorse high risk behavior, including high risk sexual behavior (HRSB) such as unprotected sex, sex with casual or multiple partners, sex under the influence of alcohol or drugs with a person who is not an exclusive partner, or trading sex for money or drugs (Strom et al., 2012)." 
b. 
As to the unnamed [ARBA Psychologist] conclusion that "unwanted" conduct is not a sequalae of PTSD, counsel refers to and requests the Board recall ABCMR petition AR20160019101, Exhibit D, Memorandum, U.S. Army Trial Defense Service, Region West, subject: Recommendation for Clemency in the case of U.S. v. [the applicant] dated 29 August 2011, which casts serious doubt on the jury's conclusion that the sexual contact between the applicant and the accuser was actually unwanted. 

c. 
Counsel encloses a declaration from Dr. B__, who provides an additional copy of her 12-page Curriculum Vitae (exhibit A) and states she is competent to testify and reviewed the [ARBA] Advisory Opinion dated 14 April 2022. She notes that paragraph 9 of the opinion, which is signed by an unknown person which makes it hard for her to assess his or her qualifications) which states, in part, that "[w]rongful sexual contact (i.e. unwanted sexual contact) is not part of the natural history or sequelae of PTSD, or other behavioral health conditions, and, as such, is not mitigated under Liberal Consideration." Dr. B__ disagrees with the ARBA Medical Advisory Opinion for three reasons: 


(1) 
First, the [ARBA Psychologist] states, "problems arising from [PTSD] include "anger, outbursts, aggressive behavior, and interpersonal difficulties." Those symptoms of PTSD are fully consistent with the applicant's "unwanted sexual conduct" as such unwanted sexual conduct in logical by product (or sequalae) of the applicant's anger, aggressive behavior, and interpersonal difficulties. 

(2) 
Second, the [ARBA Psychologist] cites not authority for the proposition that wrongful sexual conduct is not sequelae of PTSD. 

(3) 
Third, available literature supports her opinion that unlawful sexual conduct is a symptom of PTSD and provides copies of Abstracts which were provided to the Board in their entirety. 

(4) 
Dr. B_ directly refers to the "Results" in a 1-page abstract from the National Library of Medicine website printed on 19 April 2022, titled "Hypersexuality and Trauma: a mediation and moderation model from psychopathology to problematic sexual behavior," which provides the following information. 


Introduction: Hypersexuality is a clinical condition regarding the psychopathology of sexual behavior. In this study, we aimed to investigate the role of trauma, through the post-traumatic stress disorder (PTSD), depression, shame and guilt on the hypersexual behavior. 
Methods: Through an online platform, a convenience sample of 1025 subjects was recruited (females: n=731; 71.3%; males: 294; 28.7%; age: 29.62±10.90). Recruited subjects compiled a psychometric protocol composed by the Hypersexual Behavior Inventory (HBI) to assess hyper sexuality, the International Trauma Questionnaire (ITQ) for PTSD, the Patient Health Questionnaire (PHQ-9) to evaluate depression and the State Shame and Guilt Scale (SSGS) for shame and guilt. Then a mediation/moderation model was performed for the data analysis. 
Results: There was a statistically significant direct effect of post-traumatic symptoms (ITQTotal) on hypersexual behavior (HBTotal). Furthermore, indirect effects were also statistically significant, providing support to the hypothesis that depression and guilt would be serial mediators of trauma hypersexual behavior relations. The paths through depression and guilt have been found to be the most significant with moderate and high indirect effects on Hypersexuality. Moreover, male gender, as covariate variable, is a relevant risk factor for hypersexual behavior. 
Conclusion: We found the relationship between Hypersexuality and trauma describing a possible etiological pathway mainly involving depression, shame and guilt. Hypersexuality can be considered as a reactive form of a major affective psychopathology representing a tip of the iceberg hiding the real issues of a suffering personality. Clinicians and researchers should therefore consider hypersexual behavior in the light of a symptomatic manifestation of a major psychopathology involving the affective aspects of personality. 
(5) Dr. B__ provides Exhibit C, a 15-page abstract from the National Library of Medicine website published online 27 April 2020, titled "Themes in Experiences of PTSD Symptoms and Relationships Among Male Veterans with Risky Sexual Behavior," which was provided to the Board in its entirety. It provides, in part the following summaries: 
Objective: "US Veterans with PTSD symptoms are at elevated risk for high-risk sexual behavior (HRSB). Although quantitative research has examined relationships between PTSD symptoms and HRSB, qualitative research to understand the lived experiences of Veterans with PTSD symptoms and HRSB has not been conducted. It provides detailed information to include but not limited to methods, interviews, data, references, and clinical implications. 
Method: Qualitative interviews were conducted with N=29 male Veterans of Operation Enduring or Iraqi Freedom who had PTSD symptoms and reported recent HRSB. The interviews were analyzed using a phenomenological framework. 
Results: Six themes emerged: (1) avoiding social contact due to feeling different since return from service, (2) effortful self-management, (3) supportive relationships, (4) sex as a means to an end, (5) sex, risk, and intimacy, and (6) responsibility and growth. 
Conclusions: Male Veterans with PTSD symptoms and HRSB reported engagement in significant self-management to reengage in life, and still reported high levels of difficulty in relationships. They described both wanting to avoid perceived risk associated with intimate relationships and wanting to take risks that caused them to feel alive. Implications for treatment include increased efforts to facilitate coping, to recognize and moderate risk taking urges, and to build intimacy and trust. 
(6) Dr. B_ She refers the Board to research in Exhibit C, specifically citing: 
Veteran's with great PTSD symptom severity were more likely than those with less severe symptoms to endorse high risk behavior, including high risk sexual behavior (HRSB) such as unprotected sex, sex with casual or multiple partners, sex under the influence of alcohol or drugs with a person who in an exclusive partner, or trading sex for money or drugs (Strom et al., 2012), or using digital social media to see a sexual partner (Turban, Potenza, Hoff, Martino, and Kraus, 2017). By this definition, HRSB is associated with increased risk for sexually transmitted infection (STI): for example, sex with multiple partners in brief intervals or overlapping in time (concurrent partners) is a risk factor in human immunodeficiency virus (HIV) epidemics (Kalichman, Cain, $ Simbayi, 2011). 
(7) Dr. B__ ends her declaration by noting that the "unwanted sexual conduct" that the applicant was convicted involved him having sexual intercourse with a "casual…partner" was not the applicant's significant other but a person married to someone else. Her opinions rendered in her 4 August 2016, have not changed; she states to a reasonable degree of medical certitude that the applicant's combat caused PTSD was a cause that led to the "unwanted sexual conduct" criminal charge that ended his military career. In support of her opinion Dr. B__ provides the following Abstracts (provided to the Board in its entirety) which provide, in part: 
24. In response to Counsel's rebuttal, the ARBA Psychologist states, the concluding statement in the opine was challenged, that is, “Wrongful sexual contact (i.e. unwanted 
sexual contact) is not part of the natural history or sequelae of PTSD, or other behavioral health conditions, and, as such, is not mitigated under Liberal 
Consideration.” The applicant’s counsel indicated that applicant’s diagnosed PTSD could mitigate for “wrongful sexual contact,” based on symptoms of PTSD as with self-destructive behavior, recklessness and interpersonal problems. Given that the DSM-5 is the authoritative guide for behavioral health disorders, including PTSD, this serves as the most suitable referral source in determining what behaviors fall under the PTSD umbrella. There is not any mention in the PTSD section to suggest that sexual assault, or even hypersexual behavior, is considered to be a manifestation or symptom(s) of PTSD. “Wrongful sexual contact” is considered to be an act of sexual assault on an individual that in legal terms does not include penetration, but otherwise encompasses a broad spectrum of sexually assaultive, physically and psychologically harmful behaviors. The reckless or self-destructive behavior associated with PTSD is not intended to include acts of sexual assault with accompanying legal consequences of incarceration and being identified as a sexual offender or perpetrator. 
25. Clemency guidance to the BCM/NRs does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment; this includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 
a. Counsel requests, on behalf of the applicant, that his bad conduct characterization of service be upgraded to honorable; to consider his exemplary service as a ranger, sworn declarations and medical evidence submitted in support of his petition. Counsel contends the applicant's record and supporting documents outweighs the medical advisory rendered in the initial application. Based on this and commensurate to the Secretary of Defense Guidance to the BCM/NRs the Board should have reached the same conclusion as the applicant's family physician who stated the diagnosis of his PTSD was a substantial contributing factor to the conduct that resulted in his bad conduct discharge. 
b. The applicant's records provide he completed the Ranger Indoctrination Program and was assigned to 2nd Battalion, 75th Ranger Regiment; although counsel and his chain of command refer to him as a Ranger, his record is void of evidence of orders or other documents that show he was awarded the additional skill identifier (ASI) or the Ranger Tab. 
(1) 
A soldier serving in the 75th Ranger Regiment who is "Ranger Qualified" (has graduated U.S. Army Ranger school) is awarded an additional skill identifier (ASI) of "V." For example, a soldier in the grade of E-3/PFC, duty MOS qualified as an 11B (direct fire infantryman), and Ranger Qualified would show as "11B1V." 

(2) 
Nonetheless, graduating from the Ranger Indoctrination Program [referred to as RIP Course] and making it into the 75th Ranger Regiment are both accomplishments. A service member can earn a Ranger Tab without ever being assigned to a Ranger Regiment and can be assigned to the Ranger Regiment after completing RIP and still never go on to complete Ranger School. It is a historical tradition to refer to those members assigned to the 75th Ranger Regiment as a "Ranger" even if they have not completed Ranger School. 

c. 
The applicant deployed to Afghanistan for approximately 3 months and 26 days, from 23 January 2009 to 18 May 2009. The available evidence provides, a series of incidents reported on him regarding larceny, civil assault and possession of paraphernalia. 

(1) 
In January 2010, approximately 8 months and 8 days upon redeployment he was reported for Rape of an Adult by Force (Article 120, UCMJ). The investigative summary determined the applicant committed the offense of Rape when he forcibly engaged in sexual intercourse despite the victim's protest and physical resistance. During a pre-text phone call the victim asked him "Did you hear me say no", in which the applicant replied "I felt like after my roommate you would be okay with it, I am sorry, it is all my fault, I am sorry for everything that happened, I know it happened really wrong. I regret it so much." 

(2) 
He underwent a trial by general courts-martial and a jury determined he was guilty of wrongful sexual contact and adultery. He was sentenced to 6 months' confinement to be followed by a dishonorable discharge. At some point defense submitted a request, which is not provided in the available evidence, which resulted in the Trial Judge granted the applicant clemency by reducing his sentence to show Bad Conduct Discharge vice a Dishonorable Discharge, in his memorandum dated 29 August 2011. 

(3) 
The U.S. Military Court of Criminal Appeals considered the applicant's petition that the specification for adultery does not allege the terminal elements as required and the court set aside the finding of guilty for adultery. They also considered the other assignments of error presented by the applicant and concluded they have no merit, indicating the available evidence does not provide the record showing the details of the "other assignments of error" presented by the applicant. 

d. 
Manual for Courts-Martial 2008, in effect at the time the applicant was discharged provides the maximum sentence for Wrongful Sexual Contact (Article 120(m) UCMJ)) is Dishonorable Discharge, confinement for up to 1 year, forfeiture of all pay. 


e. Army Regulation 635-200 provides Soldiers under sentence to an unsuspended dishonorable or bad conduct discharge will not be discharged before appellate review is completed, unless so directed by HQDA. A discharge under other than honorable conditions may or may not deprive the Soldier of veterans’ benefits administered by the Department of Veterans Affairs; a determination by that agency is required in each case. A dishonorable discharge is the most severe characterization of service a member can be given. A Bad conduct discharge will be given 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. 
(1) An honorable discharge is a separation with honor. The honorable 
characterization 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. 
(2) 
A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

(3) 
A discharge under other than honorable conditions may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial and will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to his/her command, higher authority. When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. Examples of factors that may be considered include but are not limited to use of force or violence to produce serious bodily injury or death, abuse of a position of trust and deliberate acts or omissions that seriously endanger the health and safety of other persons. 

f. 
Overtime, the Army has continued to transform critical elements of the military justice system through improved policy and practice which include but are not limited to continued evolution of Article 120 into one of most progressive, expansive and offender-focused sexual assault statutes in the country. 

(1) 
Manual for Courts-Martial 2008 amended MCM 2007, Article 134 (Assault-Indecent) in its entirety to fall under Article 120(e) Aggravated Sexual Contact, 120(h) Abusive Sexual Contact and 120(m) Wrongful Sexual Contact. 

(2) 
Manual for Courts-Martial 2019, currently in effect, does not provide for "Wrongful Sexual Contact" as an element; Article 120, Rape and Sexual Assault show four elements to include Aggravated sexual contact and abusive sexual contact with the maximum punishment of a Dishonorable Discharge, 3-7 years' confinement and forfeiture of pay. 

g. 
In his self-authored statement, the applicant states on 3 July 2015 he was injured in a motorcycle that left him paralyzed. What he did was wrong and he accepts responsibility for his actions, however, he respectfully requests the Board to consider his PTSD as a mitigating factor for the misconduct that led to his bad conduct discharge and upgrade his characterization to Honorable; he intends to use his VA educational benefits to get a college degree, become a productive member of society, and focus on developing exercise programs that enable paralyzed individuals to get into good physical condition. 

h. 
The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in 


reaching its determination, the Board can consider the applicant’s petition and his 
service record in accordance with the published equity, injustice, or clemency guidance. 
26. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, his service record, and his statements. 
COUNSEL'S CONTENTIONS REFERENCE ABCMR DOCKET AR20160019101: 
In Court Motion (Case No. 2:21-cv-00346-CWD), counsel contends the ABCMR's [Board] decision was arbitrary, capricious, and not in accordance with the law, and not supported by substantial evidence. He states, the ABCMR must articulate a rational connection between the facts found and the conclusions made when rendering an administrative decision. An agency's decision can be upheld only on the basis or reasoning in that decision. An agency's factual findings are reviewed under the substantial evidence standard and "substantial evidence' means more than a mere scintilla, less than a preponderance, but such that a reasonable mind might accept as adequate to support a conclusion. 
1. In regards to counsel's contention that the ABCMR was arbitrary and capricious in the processing of the case. 
a. 
A review of AR20160019101, 9 December 2019 shows that the Board was provided a copy of the available evidence, as required by the Secretary of Defense [Supplemental] Guidance (generally referred to as Liberal Guidance) published on 3 September 2014. However, the ABCMR Record of Proceedings reveals summarized verbiage that may be considered arbitrary and capricious because it was unclear the Board was provided all available evidence in its entirety to support a comprehensive review of all materials and evidence provided by the petitioner and their official military records. 

b. 
As a result of the review, this ABCMR Record of Proceedings addresses, in detail, the applicant's initial petition, his self-authored statement, counsel's brief, Exhibits A-H, and available military records; and notes that a copy of all available evidence, in its entirety has been provided to the Board for their review and consideration in making a determination. 


2. In regards to counsel's contention regarding the "unnamed" official and the agency's [ARBA] failure to identify the name and/or qualifications of the medical official who rendered the medical advisory. 
a. 
Department of Defense memorandum for the Secretaries of Military Departments, subject: Withholding of Information that Personally Identifies DoD Personnel, 1 September 2005 was published to reinforce significant security considerations. It provides, in pertinent part, release of information on DoD personnel will be limited to the names, official titles, organizations, and telephone numbers for personnel only at the office director level or above, provided a determination is made that disclosure does not raise security or privacy concerns. 

b. 
ARBA has aligned with the aforementioned guidance and remains cognizant of releasing personnel DOD employee information when releasing specific legal and/or medical documents that provide advice or sensitive recommendation(s).  Lower-level DoD employees (below Colonel (COL/O6) and civilian equivalent, unless a director) have a privacy interest in protecting their names, phone, numbers, e-mail addresses, home addresses and similar information from disclosure. 


3. In regards to counsel's contentions that the ARBA medical advisory disregarded Dr. B__'s opinion in favor of an "Advisory Opinion" that failed to articulate any basis as to 
why Dr. B__'s opinion …. that the medical advisory is legally unreliable because it fails 
to not only address Dr. B___'s medically and factually based opinion but fails to explain why he or she did not rule out Dr. B___'s conclusion. 
a. Secretary of Defense Supplemental Guidance dated 3 September 2014, indicates the BCM/NRs may obtain advisory opinions from Department of Defense mental health care professionals or physicians in consideration of their cases to advise the Board on assessing the presence of PTSD and its potentially mitigating effects in relation to the misconduct that formed the basis for their less than Honorable characterization of service. 
(1) 
The primary function of qualified professionals, as it pertains to this case, a licensed psychologist/psychiatrist was responsible for executing a comprehensive review of documentation submitted in support of the applicant's petition and available evidence in official military personnel/medical records in order to provide an assessment and advise the Board and/or the Deputy, Assistant Secretary of the Army, Review Board on the presence of PTSD and its potentially mitigating effects in relation to the misconduct that led to their being discharged with a characterization less than honorable. 

(2) 
Additionally, neither law, policy, regulation, nor Secretary of Defense level guidance to the BCM/NRs provides for and/or requires Department of Defense health care professionals to rebut, rule out, or otherwise negate evidence submitted in support of applicant's petition or other available evidence. 

b. 
As it pertains to ABCMR Docket Number AR20160019101, the Board Members decision to concur with the ARBA Medical Advisory does not negate their liberal consideration of the sworn declarations, medical examination and/or his family physician's letter of support. 


4. In regards to counsel's contention that the ARBCMR's decision disregards Secretary of Defense guidance that "consideration of mitigating factors" for cases "in which PTSD or PTSD -related conditions may be reasonably determined to have existed at the time of discharge," stating the ABCMR did not explain what factors it used (e.g. how) in choosing to credit the advisory opinion's single sentence conclusion "PTSD is not considered a mitigating factor for the misconduct that led to his discharge" (which was not made under penalty of perjury as were all of the applicant's witness statements) over sworn testimony from his Platoon Leader, Platoon Sergeant, Section Leader, Physician, as well as a memorandum for record from the trial judge recommending clemency. 
a. ABCMR and their Board Members remain cognizant of maintaining integrity of their responsibility to ensure fidelity of the review protocol in each case based on law, policy, regulation, and Secretary of Defense Guidance to BCM/NRs. The ABCMR, to include Board Members remain impartial in the processing and review of all evidence and materials presented in each case, be it a sworn declaration or not. 
(1) 
Sworn declarations are not a requirement for applicant's (or those persons submitting statements on behalf of the applicant) who petition the ABCMR; additionally, the ABCMR does not require professionals in agencies internal and/or external to the Department of Defense to submit sworn declarations in the submission of their assessment and opinions within their areas of expertise. 

(2) 
Counsel emphasizes the information provided in the sworn declarations from the applicant's chain of command, who similarly state, "they heard" of the applicant's PTSD diagnosis and follow-on with their independent beliefs that "PTSD played a significant factor" if not the sole factor, in the misconduct that led to his court-martial conviction.  ABCMR acknowledges the sworn declarations regarding his character. However, it is imperative to note neither or them submitted supporting documentation that they meet the qualifications of a licensed professional as defined in the Secretary of Defense Guidelines to render a medical opinion regarding his diagnosis and whether it mitigated his misconduct. 

b. 
The ARBA medical advisory was submitted and contained information according to ARBA policy. The ARBA Exparte Letter explains receipt of the advisory opinion and that the ABCMR can adopt it in whole, in part, or reject it based on the Board analysis of the facts and circumstances of [the applicant's case]. 

(1) 
Dr. B__'s letter of support states she is a close family friend (since the applicant was 8 years old). She refers to having her first interview with the applicant in 2016; she resumed being his family physician, which was after he was already diagnosed with PTSD, Homeless. She further states, in her opinion, his combat-caused PTSD was a substantial contributing factor to the conduct giving rise to his discharge from the Army. 

(2) 
The DDS medical examination, in support of his social security application does not indicate his behavioral health diagnosis' and PTSD existed during military service and/or combat caused. The ARBA Medical Advisory clearly indicated the documentation supports existence of a behavioral health condition at the time he was discharged; however, he met medical retention standards. 

(3) 
Dr. B__ refers to reviewing the applicant's VA application, neither the applicant nor his available records provides a VA application. The ARBA Medical Advisory verifies his VA record does not show he was either seen or diagnosed with service connected PTSD. It is imperative to note that the applicant can submit an application to the VA and if the VA was to decide his active duty service was honorable 


that the VA and the Army operate under separate provisions of Federal law; as such, they are empowered to reach their own independent conclusions, based on applicable Federal laws and their own internal regulations. A determination as to character of service by the VA does not establish an error or injustice on the part of the Army. 
c. According to the Manual for Courts-Martial, the Trial Judge's Recommendation for Clemency is a result of matters submitted by the accused. After a sentence is adjudged in any court-martial, the accused may submit any matters that may reasonably tend to affect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. A clemency recommendation by a member should not disclose the vote or opinion of any member expressed in deliberations and should state reasons for the recommendation and should specifically indicate the amount and character of the clemency recommended. a clemency recommendation does not impeach the findings or the sentence. 
(1) 
The Trial Judge responded to the defense request for clemency as required by law and stated he supported the request based on the grounds of contradictory findings of fact and an unusually severe sentence. The Trial Judge states the reasons, provides his recommendation and is specific in the clemency granted by him [Trial Judge] advising "…A Dishonorable Discharge in this case is outside the common sentencing range for similar facts. For that reason, I support approval of a discharge no more severe than a Bad Conduct Discharge." 

(2) 
The U.S. Army Court of Criminal Appeals appellate review also addressed the applicant's [defense] claim, the appellate review summary provided the adultery was to be set aside set aside and the other assignments of error presented were considered and it was concluded they are without merit. The finding of Charge II for Adultery was a set aside and the remaining finding of guilty [Charge I] was AFFIRMED.  

"... The remaining finding of guilty is AFFIRMED. Reassessing the sentence on the basis of the error noted, the entire record, and i n accordance with the principles of United States v. Sales, 22 M.J. 3 0 5 (C.M.A.1986) and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring opinion, the sentence as approved by the convening authority is AFFIRMED." 

(3) 
In an effort to remain transparent with evidence the following is an excerpt of the Trial Judges Recommendation for Clemency. 


"… 3. Rape, Aggravated Sexual Assault, and Adultery all require a 
finding of penetration. Wrongful Sexual Contact, requires the same mindset as Rape or Aggravated Sexual Assault, but does not 
require penetration. Two fundamental legal questions were presented to the panel: (1) Did sexual penetration occur? (2) Was it consensual? Both sides offered evidence of three occasions of sexual penetration. The defense offered evidence that all of the alleged sexual behavior was consensual. 
4. 
The panel' s findings reflected that [the applicant] committed some non-consensual sexual touching of Ms.__ which was independent of consensual sex. That finding, while legal, is logically inconsistent considering all of the alleged behavior occurred over roughly 8 hours with the same accused. 

5. 
[The applicant's} Wrongful Sexual Contact conviction requires he register as a sexual offender. Such severe stigma flowing from such a factually ambiguous scenario counsels that justice is best served by the post-trial dismissal of Charge I. 

6. 
[the applicant's] behavior is mitigated by the lack of evidence of serious impact on the un it or public perception of the military. A Dishonorable Discharge in this case is outside the common sentencing range for similar facts. For that reason, I [Trial Judge] support approval of a discharge no more severe than A Bad Conduct Discharge." 


d. In regards to counsel's contentions regarding the ARBA medical advisory does not describe the scientific method by which that conclusion was derived; specifically, "A court determines admissibility of expert testimony by first considering whether the 
“experts' testimony reflects scientific knowledge, constitutes good science, and was derived by the scientific method. Since the unnamed Agency psychologist’s opinion 
contains no explanation as to the scientific method used to reach his or her conclusion a 
federal court reviewing the BCMR’s reliance on the Advisory Opinion would likely find 
such reliance in error." 
(1) 
Although the ABCMR is not a court, by law, we are required to use individuals who meet the credentials of the specialists identified in the law for providing expert advice or guidance to a board. The ARBA advisory opinion provided the listing of references used in their review, which included, but was not limited to the DSM-5 and Secretary of Defense Supplemental Guidance dated 3 November 2014. 

(a) 
The ARBA psychologist medical advisory acknowledges the medical evidence submitted by the applicant in support of his petition where in October 2012 he reported symptoms of depression during a primary care appointment and was referred to a behavioral health provider where he was seen for several triage appointments from 

31 October -11 December 2012 and diagnosed with Major Depressive Disorder and Anxiety Disorder on 31 January 2013. He continued to receive support as part of the RESPECT-MIL program to connect with community support and help him with his Medicaid application.  In August 2013, he was diagnosed with PTSD during a primary care appointment. 

(b) 
Based on their expertise and in accordance with policy, regulation and guidance answers the outlined questions according to Secretary of Defense Liberal Guidance and provides, yes, there is documentation to support existence of a behavioral health condition at the time of the applicant's discharge, and with respect to his behavioral health diagnosis and according to regulation the applicant DID meet medical retention standards; and PTSD is NOT considered a mitigating factor for the misconduct that led to his discharge. 

(2) 
Dr. B__'s letter of support states she is a close family friend (since the applicant was 8 years old). She refers to having her first interview with the applicant in 2016; she resumed being his family physician, which was after he was already diagnosed with PTSD. She further states, in her opinion, his combat-caused PTSD was a substantial contributing factor to the conduct giving rise to his discharge from the Army. However, the available evidence shows the applicant was diagnosed with PTSD-Homeless, there is no record of evidence diagnosing the applicant with combat caused or service related PTSD.  

(3) 
The DDS medical examination, in support of his social security application does not indicate his behavioral health diagnosis' and PTSD existed during military service and/or combat caused. The ARBA Medical Advisory clearly indicated the documentation supports existence of a behavioral health condition at the time he was discharged; however, he met medical retention standards. 

(4) 
Dr. B__ refers to reviewing the applicant's VA application, neither the applicant nor his available records provides a VA application. The ARBA Medical Advisory verifies his VA record does not show he was either seen or diagnosed with service connected PTSD. It is imperative to note that the applicant can submit an application to the VA and if the VA was to decide his active duty service was honorable that the VA and the Army operate under separate provisions of Federal law; as such, they are empowered to reach their own independent conclusions, based on applicable Federal laws and their own internal regulations. A determination as to character of service by the VA does not establish an error or injustice on the part of the Army. 

(5) 
The DSM-5 is used by clinicians and researchers to diagnose and classify mental disorders, the criteria are concise and explicit, intended to facilitate an objective assessment of symptom presentations in a variety of clinical settings and consists of three major components (1) the diagnostic classification, (2) the diagnostic criteria sets, 


while these criteria help increase diagnostic reliability (i.e., the likelihood that two doctors would come up with the same diagnosis when using DSM to assess a patient), and (3) the descriptive text. It is important to remember that these criteria are meant to be used by trained professionals using clinical judgment they are not meant to be used by the general public. 
KURTA FACTORS:  Memorandum, Office of the Under Secretary of Defense, published 25 August 2017 states, the BCM/NRs will give liberal consideration to Veterans petitions for discharge relief when the application is based on whole or in part on matters relating to mental health conditions, including PTSD, TBI, Sexual Assault, or harassment. The Veteran's testimony alone, oral or written, may establish the existence of a condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge and determine requested relief is warranted, unless the Board makes an affirmative determination, by a preponderance of evidence, that the mental health condition(s) and/or experience(s) does not excuse or mitigate the discharge. 
a. 
Did the applicant have a condition(s) or experience(s) that may excuse or mitigate the discharge? Yes, ARBA's Medical Psychologist review included the applicant's petition, supporting documents, military records, the VA electronic medical record, Joint Legacy View (JLV), civilian medical documentation, and the military electronic medical record (AHLTA) and opined that the veteran does have a condition, PTSD, that could (conceivably) excuse or mitigate the discharge. 

b. 
Did the condition(s) exist or experience(s) occur during military service? The VA electronic medical record, Joint Legacy Viewer did not indicate any service connected disabilities. However, the available evidence provides the condition of PTSD did exist and occurred during his time in service; while awaiting the US Court of Appeals determination and on a terminal leave without pay status, AHLTA notes from an Army Medical Center that show in September 2013, a military family practitioner Acute Care Team diagnosed him with "PTSD -homeless." In December 2013 the applicant reported he was still homeless, the Problem List included: 

. 
Post Traumatic Insomnia, Phase of Life or Life Circumstances Problem 

. 
Homeless 

. 
Nightmare Disorder 

. 
Anxiety 

. 
PTSD 

. 
Anxiety Disorder NOS 

. 
Depression 

. 
Major Depressive Disorder, Recurrent. Severe without Psychotic Features 

. 
Adjustment Disorder with Depressed Mood 



c. 
Does the condition(s) or experience(s) actually excused or mitigate the discharge? No. his condition of PTSD actually DOES NOT excuse or mitigate the discharge, as PTSD does not mitigate his Bad Conduct discharge due to sexual assault 


(i.e. 
wrongful sexual contact) as indicated in the opine. 

d. 
Does the condition(s) or experience(s) outweigh the discharge? See "BOARD DISCUSSION" of this Record of Proceedings. 


BOARD DISCUSSION: 
1. 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted on behalf of the applicant in support of the petition and executed a comprehensive and standard review based on law, policy, regulation, and published Department of Defense guidance to the Boards for Correction of Military/Navy Records (BCM/NR) s. 

2. 
The Board considered the recommendation of clemency from the trial judge, which 


criticizes the panel’s findings as being contradictory and ambiguous. However, the 
memorandum itself is ambiguous. 
a. The judge asserts that the panel’s findings reflected that “the [applicant] committed some non-consensual sexual touching of [the victim] which was independent of consensual sex. That finding, while legal, is logically inconsistent considering all the alleged behavior occurred over roughly 8 hours with the same accused.” It is unclear why the military judge finds the panel’s findings “logically inconsistent.” 
(1) The fact that an interaction between a victim and a perpetrator occurred over many hours hardly undermines the panel’s findings. A panel can logically find that some of the evidence of the perpetrator’s guilt met the elements of a sexual offense beyond a reasonable doubt, and that the evidence regarding other charged crimes simply did not meet that burden. Military panels are instructed, like all juries in criminal cases, that each of the elements of a charged offense must be proven with sufficient evidence. 
(2) 
It is unknown why the trial judge took issue with the panel’s findings simply because the panel determined that one charged offense was proven with sufficient evidence, and others were not. The trial judge emphasizes that the “behavior occurred over roughly 8 hours with the same accused.” The Board is unable to determine how the 8-hour timeline was established, the available evidence provides that it occurred between the hours of 0445-0645. Despite the timeline, many things can occur over such a lengthy time period --some consensual and some not consensual; some criminal, and some not criminal, the Board does not find this situation, to be “factually ambiguous.” 

(3) 
Moreover, the trial judge was authorized at the close of evidence, on his own motion, to enter a finding of not guilty of any offense if he determined the evidence was insufficient to sustain a conviction for that particular offense. The available evidence provides the clemency rendered was relief of a Dishonorable Discharge to a Bad Conduct Discharge. In fact, the trial judge’s clemency memorandum concedes that the panel’s guilty finding relative to the Wrongful Sexual Contact charge was legal. The Army Court of Criminal Appeals likewise arrived at the same conclusion and upheld the guilty finding relative to the Wrongful Sexual Contact charge. As for the trial judge’s recommendation that the applicant’s Dishonorable Discharge be upgraded to a Bad Conduct Discharge, the general court-martial convening authority followed that recommendation and directed the discharge upgrade in 2014. The Board is not persuaded that the trial judge’s memo indicates that additional clemency is warranted. 

b. 
The Board is aware that the Army Court of Criminal Appeals (ACCA) dismissed the Adultery charge relative to the applicant. The applicant was found guilty at his court-martial of both Wrongful Sexual Contact and Adultery. 


(1) It is the Board’s understanding that the reason ACCA dismissed the Adultery charge was not because evidence indicated the applicant’s innocence, or due to an insufficiency of culpable evidence; Instead, ACCA dismissed the Adultery charge because the prosecution failed to allege a necessary element in the charging document. The missing element required the prosecution to demonstrate that the adulterous activity was either service discrediting or prejudicial to good order and discipline in the military. 
(2) The Board infers from this action that ACCA did not dismiss the charge due to insufficient proof of the applicant’s adulterous behavior.  It is important to note that ACCA, after dismissing the Adultery charge, was authorized to reassess the applicant’s punishment in light of the dismissed charge. In other words, ACCA was authorized to disapprove the Bad Conduct Discharge.  ACCA chose not to do so, and instead upheld the punitive discharge. 
3. The applicant and his counsel contend that a discharge upgrade is warranted to correct an error and/or remove an injustice. The applicant and his counsel assert that the applicant suffered from PTSD at the time of his criminal behavior and that the applicant’s PTSD symptomology warrants clemency in the form of a discharge upgrade to Honorable. When assessing requests for discharge upgrades that assert an 
applicant’s PTSD as a mitigating factor, the ABCMR is required to apply liberal 
consideration when adjudicating the case. 
a. The applicant and his counsel have provided a letter of opinion from his family physician asserting that the applicant suffered from PTSD at the time of the criminal misconduct. A medical advisory opinion authored by an Army Review Board Agency (ARBA) behavioral health specialist (psychologist) notes that the applicant did serve in combat and, after returning from deployment, manifested some behaviors indicting that the applicant had service-connected PTSD.  Applying liberal consideration to the question of whether the applicant did or did not suffer from PTSD at the time of the criminal misconduct, the Board finds that the applicant did conceivably suffer from PTSD at the time of the criminal misconduct. 
b. The Board must also determine whether the applicant’s PTSD was a mitigating factor relative to the criminal misconduct. Federal law and policy require the Board to apply liberal consideration to the question of whether the applicant’s PTSD was a mitigating factor relative to the relevant misconduct. The Board carefully considered all evidence an opinions provided on behalf of the applicant in support of his application. 
(1) The opinion asserts that PTSD can influence a person’s judgment relative to sexual activity. The opinion’s author cites to studies / literature indicating that PTSD is associated with high risk sexual behavior (HRSB) such as unprotected sex, sex with a casual partner or multiple partners, sex under the influence of alcohol or drugs with a person who is not an exclusive partner, etc. The medical doctor submitted an abstract of an article titled “Hypersexuality and Trauma: a mediation and moderation model from psychopathology to problematic sexual behavior.” 
(2) 
The Board does not dispute the PTSD might be considered a mitigating factor for engaging in HRSBs, but the applicant was not convicted for engaging in HRSBs; instead, he was convicted for unlawfully touching a woman in a sexual manner without her consent. 

(a) The Board notes that none of the cited studies/literature claim that PTSD influences a person to engage in, and should be considered a mitigating factor for, non-consensual sexual activity. Yet the opinion from the applicant's physician nevertheless makes this assertion, and advises this Board that PTSD should be considered a mitigating factor for the applicant’s criminal sexual activity. 

(b) 
The Board is disinclined to follow this line of reasoning since it would appear to provide a PTSD-based exoneration for just about any non-consensual sexual misconduct. 

(3) 
The Board believes such an assertion proves too much. The Board instead is more persuaded by the advisory opinion provided by the ARBA behavioral health profession. That opinion provides: Problems arising from Posttraumatic Stress Disorder (PTSD) often contribute to self-isolation, anger outbursts, aggressive behavior, intrusive memories, nightmares, interpersonal difficulties, poor sleep and self-medication with drugs/alcohol. Wrongful sexual contact (i.e. unwanted sexual contact) is not part of the natural history or sequelae of PTSD. 


4. The Board is also mindful of the guidance from the Department of Defense, which cautions that “the severity of misconduct may outweigh any mitigation from mental health conditions….” and has directed that BCM/NRs “will exercise caution in weighing evidence of mitigation in case in which serious misconduct precipitated a [derogatory] discharge.” The misconduct in this case is Wrongful Sexual Contact. 
a. Wrongful Sexual Contact is sexual contact with another person without that 
other person’s permission.  The offense carried a maximum punishment of a 
Dishonorable Discharge, forfeiture of all pay and allowances, reduction to E-1, and confinement for one year. 
b. The Board considers Wrongful Sexual Contact to be serious and severe 
misconduct. Consequently, the Board finds that the applicant’s PTSD did not excuse his 
criminal behavior relative to his conviction for Wrongful Sexual Contact. The Board finds 
that the applicant’s discharge due to criminal misconduct outweighs whatever mitigating 
effect resulted from his PTSD. 
5. Based upon a preponderance of evidence the condition of PTSD did exist and occurred during his time in service; he was diagnosed while awaiting the US Court of Appeals determination and on a terminal leave without pay status. The condition (PTSD) in some cases does excuse or mitigate derogatory discharges. The Board finds that the applicant’s PTSD does not outweigh the discharge. Consequently, counsel, on behalf of the applicant has not demonstrated by a preponderance of evidence that error or injustice occurred in this case. Therefore, the Board finds that relief or clemency in the form of a discharge upgrade is not warranted. 
BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XX DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
The evidence presented does not demonstrate the existence or a probable error or injustice. Therefore, the Board determined the overall merits of the case are insufficient as a basis for correction of records of the individual concerned. 
X 
CHAIRPERSON 
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 
ADMINISTRATIVE NOTE(S): Not Applicable 
REFERENCES: 
1. 10 United States Code § 1552 (Correction of military records), in part: 
a. Subsection (a)(1) provides the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department. 
b. 
Subsection (a)(3) provides corrections under this section shall be made under procedures established by the Secretary concerned. 

c. 
 Subsection (a)(4)(b) provides if a board established under this section does not grant a request for an upgrade to the characterization of a discharge or dismissal, that declination may be considered under section 1553a of this title. 

d. 
 Subsection (c)(4) provides if the correction of military records under this section involves setting aside a conviction by court-martial, the payment of a claim under this subsection in connection with the correction of the records shall include interest at a rate to be determined by the Secretary concerned, unless the Secretary determines that the payment of interest is inappropriate under the circumstances. If the payment of the claim is to include interest, the interest shall be calculated on an annual basis, and compounded, using the amount of the lost pay, allowances, compensation, emoluments, or other pecuniary benefits involved, and the amount of any fine or forfeiture paid, beginning from the date of the conviction through the date on which the payment is made. 

e. 
Subsection (e) provides no payment may be made under this section for a benefit to which the claimant might later become entitled under the laws and regulations administered by the Secretary of Veterans Affairs. 

f. 
 Subsection (f) provides with respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under chapter 47 of this title or under Uniform Code of Military Justice (Public Law 506 of the 81st Congress)), action under subsection (a) may extend only to— 


(1) 
Correction of a record to reflect actions taken by reviewing authorities under chapter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)); or 

(2) 
Action on the sentence of a court-martial for purposes of clemency. . 


2. Historical Context. 
a. Award of the Ranger Tab does not indicate service in the 75th Ranger Regiment, which is the special operations unit commonly thought of when one says "Army Ranger." In order to earn a place in the Ranger Regiment, a person needs to complete the Ranger Assessment and Selection Program (RASP) [formerly known as the Ranger Indoctrination Program (RIP)]. Once a soldier makes it through selection, they earn a Range Scroll, which denotes assignment to a special operations unit that has rightfully garnered a great deal of acclaim throughout America's History.  Not all graduates of Ranger School are scrolled to serve in the Ranger Regiment. 
b.  Sexual Assault/Sexual Harassment Prevention. 
(1) 
In February 2004, Secretary of Defense Donald H. Rumsfeld directed the Under Secretary of Defense, Personnel and Readiness to review the process for treatment and care of victims of sexual assault in the Military Services. One of the recommendations emphasized the need to establish a single point of accountability for sexual assault policy within the Department, which led to the establishment of a Joint Task Force for Sexual Assault Prevention and Response. 

(2) 
The Task Force focused its initial efforts on developing a new DoD-wide sexual assault policy that incorporated recommendations set forth in the Task Force Report on Care for Victims of Sexual Assault as well as in the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (PL108-375). This act directed the Department to have a sexual assault policy in place by January 1, 2005. In January 2005, DoD presented to Congress a comprehensive policy on prevention and response to sexual assault. The policy provides a foundation for the Department to improve prevention of sexual assault, significantly enhance support to victims and increase reporting and accountability. 

(3) 
The Army first introduced SAPR (Now SHARP) training in 2006, requiring annual unit training and subsequently embedding it in all levels of professional military education and initial entry training to the Army War College. 

(4) 
In 2009the Army’s SHARP program has focused its efforts on five specific priorities or Lines of Effort: (1) Prevention of sexual assault (2) Competent and sensitive investigations of sexual assault (3) Accountability for the perpetrators of sexual assault 

(4)
 Assistance to, and advocacy for, the victims of sexual assault (5) Effective assessment of SHARP programs.  Additionally, the cornerstone of the Army’s accountability efforts is the Special Victims Prosecutor (SVP) and Sexual Assault Investigators (SAI) Program; recognizing the need for improved training and resources for the prosecution of sexual assault and family violence crimes, the Army initiated the 


SVP in the Judge Advocate General’s Corps (JAGC) and the Sexual Assault 
Investigators SAI within CID. The SVPs are hand selected by senior leaders at the HQDA level for their expertise in the courtroom and their ability to work with victims. 
(5) Revised SHARP training was implemented in early 2011 in the basic combat training portion of initial entry training. Soldiers are introduced to "Sex Rules" ("Sex Rules -Follow Them") which defines each rule and linking them to an Army Value. and "Sex-Signals" a 90-minute, live, two-person, audience interactive program containing skits dealing with topics ranging from dating and consent, to rape and other topics such as body lingual, alcohol use and intervention. Additionally, Drill Sergeants and Army Recruiters attend specialized training tailored to their unique roles and use a pocket guide "Sex Rules -Teach Them." U.S. Army Cadet Command assessed and revived all basic officer leader course-accessions. 
(6) CID issued the Sexual Assault Investigation Handbook in April 2013. This resource provided investigators with a pamphlet that highlights and reminds agents of important issues regarding sexual assault investigations such as crime scene processing, interviews and alcohol facilitated incidents. One of the most innovative aspects of the Army’s sexual assault investigation training is the Forensic Experiential Trauma Interview (FETI) technique. Since 2013, CID has used a forensic tool (Cellbrite) that allows agents at all locations to analyze and download emails, texts and phone numbers from suspects’ and victims’ cell phones, providing valuable evidence in sexual assault investigations. 
(7) The Chief of Staff set the tone for leader accountability when, in June 2013, he issued five imperatives and told senior Army leaders that, “combating sexual harassment and sexual assault is our primary mission.” These imperatives require leaders to establish positive command climates where incidents of sexual assault are rare, but when they do occur, victims are treated with dignity and respect while offenders are held appropriately accountable 
(8) In December 2013, President Obama directed the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to provide a comprehensive report that would detail the military’s progress in preventing and responding to incidents of sexual assault. In preparation for the omnibus report of the Department of Defense (DoD), Secretary Hagel and Chairman Dempsey tasked each Military Service to provide a report outlining all of the Service-level programs implemented since Fiscal Year 2012, a period in which all of the Services have taken aggressive steps in this area. 
(9) 
In 2014 the Army implemented Special Victims Counsel (SVC) Program. 4. This program is unique to the military justice system and is unequalled in the civilian community. At no cost to the victim, the Army provides a specially trained attorney to every Soldier or dependent family member victim of sexual assault. The SVC represents the victim throughout the investigation and accountability process, with the primary duty to zealously represent the express interests of the victim, even if those interests do not align with the government’s interests. National Defense Authorization Act, Fiscal Year 2014 resulted in key provisions of the Uniform Code of Military Justice (UCMJ) Article 120. 

(10) 
The Army has continued to transform critical elements of the military justice system through improved policy and practice which include but are not limited to Continued evolution of Article 120 into one of most progressive, expansive and 


offender-focused sexual assault statutes in the country • Elevation of initial disposition authority for sexual assault offenses; elevated review of decisions not to refer allegations to court-martial • Revision of the scope and procedural rules for Article 32 preliminary hearings • Enhanced protections for victims during preliminary hearings, including application of “rape shield” evidentiary rules and the victim advocate privilege • Revision of the Rules for Court-Martial governing disposition of offenses • Revision of procedures to allow victims and their counsel to be heard throughout the pre and post-
trial process • Addition of mandatory minimum sentences for sexual assault • Procedures for identifying and separating Soldiers convicted of sexual offenses • 
Codifying the criminal nature of retaliatory acts taken against Soldiers who report a sexual assault or intervene to stop one • Adopting a policy to publish all courts-martial results in a public forum to provide maximum transparency to our community. 
3. The Manual for Courts-Martial, United States (2008) 
a.  Article 120 -Rape, sexual assault, and other sexual misconduct 
(1) 
Rape. Any person subject to this chapter who causes another person of any age to engage in a sexual act by— 

(a) 
using force against that other person; 

(b) 
causing grievous bodily harm to any person; 



(c) 
threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping; 

(d) rendering another person unconscious; or 

(e) 
administering to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairs the ability of that other person to appraise or control conduct; is guilty of rape and shall be punished as a court-martial may direct. 

(2) Aggravated sexual assault. Any person subject to this chapter who— 
(a) causes another person of any age to engage in a sexual act by— 
. 
threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping); or 

. 
causing bodily harm; or 



(b) 
Engages in a sexual act with another person of any age if that other person is substantially incapacitated or substantially incapable of— 

. 
appraising the nature of the sexual act; 

. 
declining participation in the sexual act; or 

. 
communicating unwillingness to engage in the sexual act; is guilty of aggravated sexual assault and shall be punished as a court-martial may direct. 




(3) Wrongful sexual contact. Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person’s permission is guilty of wrongful sexual contact and shall be punished as a court-martial may direct. 
b. Definitions. 
(1) Sexual Act. The term sexual act means­
(a) 
Contact between the penis and the vulva, and for purposes of this term contact involving the penis occurs upon penetration, however, slight; or 

(b) 
The penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. 

(2) 
Sexual contact. The term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person. 


(3) The term “consent” means words or over tact's indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused’s use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent. A person cannot consent to sexual activity for reasons to include substantially incapable of— appraising the nature of the sexual conduct at issue due to— physically declining participation in the sexual conduct at issue; or physically communicating gun willingness to engage in the sexual conduct at issue. 
c.  Rule 1105. Matters submitted by the accused. 
(1) After a sentence is adjudged in any court-martial, the accused may submit matters to the convening authority in accordance with this rule. The accused may submit to the convening authority any matters that may reasonably tend to affect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. The convening authority is only required to consider written submissions. Submissions are not subject to the Military Rules of Evidence and may include allegations of errors affecting the legality of the findings or sentence; portions or summaries of the record and copies of documentary evidence offered or introduced at trial; and matters in mitigation which were not available for consideration at the court-martial. Discussion. For example, post-trial conduct of the accused, such as providing restitution to the victim or exemplary behavior, might be appropriate. 
(2) Clemency recommendations by any member, the military judge, or any other person. The defense may ask any person for such a recommendation. Discussion A clemency recommendation should state reasons for the recommendation and should specifically indicate the amount and character of the clemency recommended. A clemency recommendation by a member should not disclose the vote or opinion of any member expressed in deliberations. Except as provided in R.C.M. 923 and 1008 and Mil. R. Evid. 606(b), a clemency recommendation does not impeach the findings or the sentence. If the sentencing authority makes a clemency recommendation in conjunction with the announced sentence, see R.C.M. 1106(d)(3)(B). Although only written submissions must be considered, the convening authority may consider any submission by the accused, including, but not limited to, videotapes, photographs, and oral presentations. 
4.  The Diagnostic and Statistical Manual of Mental Disorders (DSM) is the handbook used by health care professionals in the United States and much of the world as the authoritative guide to the diagnosis of mental disorders. DSM-5 is the product of more than 10 years of effort by hundreds of international experts in all aspects of mental health. Their dedication and hard work have yielded an authoritative volume that defines and classifies mental disorders in order to improve diagnoses, treatment, and research. 
a. 
 Used by clinicians and researchers to diagnose and classify mental disorders, the criteria are concise and explicit, intended to facilitate an objective assessment of symptom presentations in a variety of clinical settings—inpatient, outpatient, partial hospital, consultation-liaison, clinical, private practice, and primary care. 

b. 
DSM consists of three major components: the diagnostic classification, the diagnostic criteria sets, and the descriptive text. 


(1) 
Diagnostic Classification. The diagnostic classification is the official list of mental disorders recognized in DSM. Each diagnosis includes a diagnostic code, which is typically used by individual providers, institutions, and agencies for data collection and billing purposes. 

(2) 
Diagnostic Criteria Sets. For each disorder included in DSM, a set of diagnostic criteria indicates symptoms that must be present (and for how long) as well as a list of other symptoms, disorders, and conditions that must first be ruled out to qualify for a particular diagnosis. While these criteria help increase diagnostic reliability (i.e., the likelihood that two doctors would come up with the same diagnosis when using DSM to assess a patient), it is important to remember that these criteria are meant to be used by trained professionals using clinical judgment; they are not meant to be used by the general public. 

(3) 
Descriptive Text. The third area of DSM is the descriptive text that accompanies each disorder. The text of DSM–5 provides information about each disorder under the following headings: 

. 
Diagnostic Features 

. 
Associated Features Supporting Diagnosis 

. 
Subtypes and/or Specifiers 

. 
Prevalence 

. 
Development and Course 

. 
Risk and Prognosis Factors 

. 
Diagnostic Measures 

. 
Functional Consequences 

. 
Culture-Related Diagnostic Issues 

. 
Gender-Related Diagnostic Issues 

. 
Differential Diagnosis 




5. Army Regulation 635-200 provides for the separation of enlisted personnel; it provides in pertinent part: 
a.  A Soldier may be retained after his/her term of service has expired when awaiting trial or result of trial by court-martial when he/she would otherwise be eligible for discharge or release from AD will not be discharged or released until final disposition of the court-martial charges. Soldiers under sentence to an unsuspended dishonorable or bad conduct discharge will not be discharged before appellate review is completed, unless so directed by HQDA. A discharge under other than honorable conditions may or 
may not deprive the Soldier of veterans’ benefits administered by the Department of 
Veterans Affairs; a determination by that agency is required in each case. 
b.  An honorable discharge is a separation with honor. The honorable 
characterization 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. 
c. 
 A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

d. 
 A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances. 


(1) 
An under-other-than-honorable-conditions discharge will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to his/her command, higher authority, or the commander exercising special court-martial convening authority over the Soldier who submitted a request for discharge in lieu of court-martial (see chap 10) when delegated authority to approve such requests. 

(2) 
When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. Examples of factors that may be considered include the following: 

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Use of force or violence to produce serious bodily injury or death 

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Abuse of a position of trust 

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Disregard by a superior of customary superior-subordinate relationships 

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Acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army 

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Deliberate acts or omissions that seriously endanger the health and safety of other persons 



e. 
 Bad conduct discharge. 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 staff judge advocate. 

f. 
Dishonorable discharge. A Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general 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 staff judge advocate. 
6. Memorandum, Secretary of Defense, subject: Supplemental Guidance for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder dated 3 September 2014, provides, in pertinent part: 
a. 
 Recent attention has been focused upon the petition of Vietnam veterans to Military Department Boards for Correction of Military/Navel Records (BCM/NRs) for the purposes of upgrading their discharges based on claims of previously unrecognized as a diagnosis at the time of service and in many cases, diagnosis was not made until decades after service was completed. The purpose of this memorandum is to provide guidance for BCM/NRs to help ensure consistency on these applications. 

b. 
BCM/NRs will fully and carefully consider every petition based on PTSD brought by each veteran. This includes comprehensive review of all materials and evidence provided by the petitioner. Quite often, however, the records of service members who served before PTSD was recognized, including those who served in Vietnam theater, do not contain substantive information concerning medical conditions in either Service treatment records or personnel records. It has therefore been extremely difficult to document conditions that form a basis for mitigation in punitive, administrative, or other legal actions or to establish a nexus between PTSD and the misconduct underlying the Service members discharge with a characterization of service of under other than honorable conditions. 

c. 
 BCM/NRs are not courts, nor are they investigative agencies. To assist in the review of records and to ensure fidelity of the review protocol in these cases, the supplemental policy guidance which details medical considerations, mitigating factors, and procedures for review is provided. This guidance is not intended to interfere with or impede the Board's statutory independence to correct errors or remove injustices through the correction of military records. 


d. The attachment provided consists of two pages of guidance. 
(1) Medical Guidance. 
(a) 
Liberal consideration will be given in petitions for changes in characterization of service to Service treatment record entries which document one or more symptoms which meet the diagnostic criteria of PTSD or related conditions. Special consideration will be given to the Department of Veterans Affairs determinations which document PTSD or PTSD-related conditions connected to military service. 

(b) 
In cases where Service records or any document from the period of service substantiate the existence of one or more symptoms of what is now recognized as PTSD or a PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. 

(c) 
Liberal consideration will also be given in cases where civilian providers confer diagnosis of PTSD or PTSD related conditions, when case records contain narratives that support symptomology at the time of service, or when any other evidence which may reasonably indicate that PTSD or PTSD-related disorder existed at the time of discharge which might have mitigated that caused under other than honorable conditions characterization of service. 

(2) Consideration of Mitigating Factors 

(a) 
Conditions documented in the 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 PTSD or PTSD-related conditions 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 under other than honorable conditions characterization of service. 

(b) 
Correction Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed-combat related PTSD or PTSD-related conditions as a causative factor 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. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 

(3) 
Procedures. Time limits to reconsider decisions will be liberally waived for applications covered by this guidance. Cases covered by this guidance will receive timely consideration, consistent with statutory timeliness standards. BCM/NRs may obtain advisory opinions from Department of Defense mental health care professionals or otherwise use Department of Defense mental health care professionals and physicians in their consideration of cases to advise them on assessing the presence of PTSD and its potentially mitigating effects relating to the misconduct that formed the basis for the under other than honorable characterization of service. 


7. Memorandum, Office of the Under Secretary of Defense, subject: Clarifying Guidance to Military Discharge Review Boards and Board for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment dated 25 August 2017, provides, in pertinent part: 
a. 
In December 2016 the Department announced a renewed effort to ensure veterans were aware of the opportunity to have their discharges and military records reviewed; and noted the Department was currently reviewing policies for the Correction of Military/Naval Records (BCM/NRs) and Discharge Review Boards (DRBs) and considering whether further guidance was needed. The Department also invited feedback from the public on policies and how the discharge review process could be improved. 

b. 
As a result of that feedback and the Department's internal review, it was determined that clarifications are needed regarding mental health conditions, sexual assault, and sexual harassment. To resolve lingering questions and potential ambiguities, clarifying guidance is provided as an attachment. The guidance is not intended to interfere with or impede the Boards' statutory independence. Through this guidance, however, there should be greater uniformity amongst the review boards and veterans will be better informed about how to achieve relief in these types of cases. 

c. 
 To be sure, the BCM/NR's and DRBs are tasked with tremendous responsibility and they perform their tasks with remarkable professionalism. Invisible wounds, however, are some of the most difficult cases they review and there are frequently limited records for the boards to consider, often through no fault of the veteran, in resolving appeals for relief.  Standard for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. This clarifying guidance ensures fair and consistent standards of review for veterans with mental health conditions, or who experienced sexual assault or sexual harassment regardless of when they served or in which Military Department they served. 


d.  The attachment, consists of four pages of guidance and states, in pertinent part: 
(1) Requests for discharge relief typically involve four questions: 
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Did the veteran have a condition or experience that may excuse or mitigate the discharge? 

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Did that condition exist/experience occur during military service? 

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Does that condition or experience actually excuse or mitigate the discharge? 

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Does that condition or experience outweigh the discharge? 


(2)
 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.  Evidence may come from sources other than a veteran's service record and may include the following. Evidence may also include changes in behavior; requests for transfer to another military duty assignment, deterioration in work performance, inability of the individual to conform their behavior to the expectations of a military environment; substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause; unexplained economic or social behavior changes; relationship issues; or sexual dysfunction. 

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Law enforcement authorities 

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Rape crisis centers 

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Mental health counseling centers 

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Hospitals 

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Physicians 

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Tests for sexually transmitted diseases 

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Statements from family members, friends, roommates, co-workers, fellow service members, or clergy 



(3) 
Evidence of misconduct, including any misconduct underlying a veteran's discharge, may be evidence of a mental health condition, including PTSD, TBI, or of behavior consistent with experiencing sexual assault or sexual harassment. The veteran's testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 

(4) 
Was there a condition or experience? Absent clear evidence to the contrary, a diagnosis rendered by a licensed psychiatrist or psychologist is evidence the veteran had a condition that my excuse or mitigate the discharge. Evidence that may reasonably support more than one diagnosis should be liberally considered as supporting a diagnosis, where applicable, that could excuse or mitigate the discharge. A veteran asserting a mental health condition without a corresponding diagnosis of such condition from a licensed psychiatrist or psychologist, will receive liberal consideration of evidence that may support the existence of such a condition. 

(5)
Did it exist/occur during military service? A diagnosis made by a licensed psychiatrist or psychologist that the condition existed during military service will receive liberal consideration. 

(6) 
Does the condition/experience excuse or mitigate the discharge? Conditions or experiences that may have reasonably existed at the time of discharge will be liberally considered as excusing or mitigating the discharge.  Evidence that may 

reasonably support more than one diagnosis or a change in diagnosis, particularly where the diagnosis is listed as the narrative reason for discharge, will be liberally construed as warranting a change in narrative reason to "Secretarial Authority," "Condition not a disability," or another appropriate basis. 

(7) 
Does the condition/experience outweigh the discharge? In some cases, the severity of misconduct may outweigh any mitigation from mental health conditions, including PTSD, TBI, sexual assault or sexual harassment. Pre-meditated misconduct is not generally excused by mental health conditions, including PTSD, TBI or by a sexual assault or sexual harassment experience. However, substance seeking behavior and efforts to self-medicate symptoms of a mental health condition may warrant consideration. Review Boards will exercise caution in assessing the casual relationship between asserted conditions or experiences and pre-meditated misconduct. 

(8) 
Additional Clarifications. The supplemental guidance provided by then Secretary Hagel on 3 September 2014, as clarified in this guidance also applies to both BCM/NRs and DRBs. The guidance documents are not limited to Under Other Than Honorable Condition discharge characterization but rather apply to any petition seeking discharge relief. 

(9) Liberal consideration includes but is not limited to the following concepts: 

(a) 
Some circumstances require greater leniency and excusal from normal evidentiary burdens.  It is unreasonable to expect the same level of proof for injustices committed years ago when TBI, mental health conditions such as PTSD and victimology were far less understood than they are today. It is unreasonable to expect the same level of proof for injustices committed years ago when there is now restricted reporting, heightened protections for victims, greater support available for victims and witnesses, and more extensive training on sexual assault and sexual harassment. 

(b) 
Mental health conditions, including PTSD impact veterans in many intimate ways, are often undiagnosed years afterwards, and are frequently unreported; and inherently affect one's behaviors and choices causing veterans to think and behave differently than might otherwise be expected. Reviews involving diagnosed, undiagnosed, or misdiagnosed TBI or mental health conditions such as PTSD should not condition relief of existence of evidence that would be unreasonable or unlikely under the specific circumstances of the case. 

(c) 
Veterans with mental health conditions may have difficulty presenting a thorough appeal for relief because of how the asserted condition or experience has impacted the veteran's life. An Honorable discharge characterization does not require flawless military service. Many veterans are separated with an Honorable characterization despite some relatively minor or infrequent misconduct. 

(d) 
The relative severity of some misconduct can change over time, thereby changing the relative weight of the misconduct to the mitigating evidence in a case. For example, marijuana use is still unlawful in the military but is now legal in some states and it may be viewed, in the context of mitigating evidence, as less severe than it was decades ago.  Veterans discharged under prior procedures, or before verifiable diagnosis, may not have suffered an error because the separation authority was unaware of their condition or experience at the time of discharge. However, when compared to similarly situated individuals under today's standards, they may be victim of injustice because commanders fully informed of such conditions and casual relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care. 

(e) 
Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD, TBI, or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 


8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and is a part of the broad authority that DRBs and BCM/NRs have to ensure fundamental fairness. BCM/NRs may grant clemency regardless of the court-martial forum; however, DRBs are limited in their exercise of clemency in that they may not exercise clemency for discharges or dismissals issued at a general court-martial. This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 
a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. Each case will be assessed on its own merits. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 
(1) 
Changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome than the applicant received may be grounds for relief. The relative severity of some misconduct can change over time, thereby changing the relative weight of the 

misconduct in the case of the mitigating evidence in a case.  For example, marijuana use is still unlawful in the military, but it is now legal under state law in some states and it may be viewed, in the context of mitigating evidence, as less severe today than it was decades ago. 

(2) 
Requests for relief based in whole or in part on a mental health condition, including PTSD, should be considered for relief on equitable, injustice, or clemency grounds whenever there is insufficient evidence to warrant relief for an error or impropriety. 

(3) 
Similarly situated Service members sometimes receive disparate punishments. A Service member in one location could face court-martial for an offense that routinely is handled administratively across the Service. This can happen for a variety of lawful reasons. for example, when a unit or command finds it necessary to step up disciplinary efforts to address a string of alcohol-or drug-related incidents, or because attitudes about a particular offense vary between different career fields, units, installations, or organizations. While a court-martial or a command would be within its authority to choose a specific disposition forum or issue a certain punishment, DRBs and BCM/NRs should nevertheless consider uniformity and unfair disparities in punishments as a basis for relief. 

(4) 
Relief is generally more appropriate for nonviolent offenses than for violent offenses. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider the following, as applicable: 

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An applicant's candor 

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Whether the punishment, including any collateral consequences, was too harsh 

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The aggravating and mitigating facts related to the record or punishment from which the veteran or Service member wants relief 

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Positive or negative post-conviction conduct, including any arrests, criminal charges, or any convictions since the incident at issue 

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Severity of misconduct 

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Length of time since misconduct 

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Acceptance of responsibility, remorse, or atonement for misconduct 

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The degree to which the requested relief is necessary for the applicant 

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Character and reputation of applicant 

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Critical illness or old age 

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Meritorious service in government or other endeavors 

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Evidence of rehabilitation m. Availability of other remedies 

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Job history 

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Whether misconduct may have been youthful indiscretion 

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Character references 

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Letters of recommendation 

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Victim support for, or opposition to relief, and any reasons provided 



b. 
Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 


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