1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is bad conduct. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge was unjustified because of misdiagnosed PTSD. b. Board Type and Decision: In a records review conducted on 3 October 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Court-Martial (Other) / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 2 April 2009 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 7, dated 16 May 2008, on 8 January 2008, the applicant was charged with the following: Charge I: Violation of Article 81, for, on or about 9 May 2007 for conspiring with SPC C. to commit an offense under the UCMJ, to wit: distribution of 3-4-methylenedioxy methamphetamine (ecstasy). Plea: Not Guilty, Finding: Guilty. Charge II: Article 92, on or about 10 May 2007, violate a lawful general regulation, to wit: Fort Campbell Regulation 210-1, paragraph 4a, 9 February 2007, by wrongfully possessing drug paraphernalia. Plea: Guilty, Finding: Guilty. Charge III: Article 112a. Specification 1: Did, at or near Fart Campbell, Kentucky, on or about 10 May 2007, wrongfully distribute some amount of ecstasy. Plea: Guilty. Finding: Guilty. Specification 2: Did, at or near Fort Campbell, Kentucky, on or about 10 May 2007, wrongfully introduce some amount of ecstasy onto an installation used by the armed forces, to wit: Fort Campbell, Kentucky with the intent to distribute the said ecstasy. Plea: Not Guilty. Finding: Not Guilty. Specification 3: Did, at or near Fort Campbell, Kentucky, between on or about 11 April 2007, and on or about 10 May 2007, wrongfully use marijuana. Plea: Guilty. Finding: Guilty. Specification 4: the applicant, US Army, did, at or near Fort Campbell, Kentucky between on or about 10 August 2007, wrongfully use marijuana. Additional Charge: Article 112a. Specification: the applicant, US Army, did, at or near Fort Campbell, Kentucky between on or about 26 August and 26 Septemberv2007, wrongfully use marijuana. (2) Adjudged Sentence: Reduction to E-1; Forfeiture of 893 per month for eight months to be confined for 8 months, and to be discharged from the service with a Bad Conduct discharge. (3) Date / Sentence Approved: 16 May 2008 / Reduction E-1, Forfeiture of $893 per month for eight months confinement for 8 months, and a bad conduct discharge was approved and, the applicant was credited with 90 days of confinement towards the sentence to confinement. The sentence to confinement had been served. Article 71(c) having been complied with, the Bad-Conduct discharge would be executed. (4) Appellate Reviews: The Record of Trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 5 February 2009 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 June 2004 / 4 years b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 63B10, Wheeled Vehicle Mechanic / 4 years, 5 months, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (NIF) f. Awards and Decorations: NDSM, GWOTSM, ICM-CS, ASR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “PDY” to “CMA,” effective 8 January 2008; and From “CMA” to “PDY,” effective 28 April 2008. i. Lost Time / Mode of Return: 3 months, 2 weeks, 5 days / CMA, 8 January 2008 – 27 April 2008 / Release from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: Two letters from ST. Charles Psychiatric Associates, 27 May 2015, reflect the applicant meets the criteria for PTSD, in both the DSM IV and DSM-V including severe nightmares, panic attacks, flashbacks to the war, anger mood swings, fight or flight, physical symptoms of elevated heart rate, sweating and increased aggression. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; two psychiatric letters; four letters of support. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. (4) Paragraph 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Paragraph 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing SJA. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JJD” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial (other). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant’s Army Military Human Resource Record (AMHRR) indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant contends the discharge was unjustified because of misdiagnosed PTSD. The applicant provided two letters from ST. Charles Psychiatric Associates, 27 May 2015, reflecting the applicant met the criteria for PTSD in both the DSM IV and DSM-V including severe nightmares, panic attacks, flashbacks to the war, anger mood swings, fight or flight, physical symptoms of elevated heart rate, sweating and increased aggression. The AMHRR is void of a mental status evaluation. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct before and after leaving the Army. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Post Traumatic Stress Disorder, Anxiety Disorder, Depression. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant was diagnosed with PTSD and Anxiety Disorder by a civilian provider who opined the conditions were related to combat. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant’s has potentially mitigating diagnosis of PTSD, Depressive Disorder, and Anxiety Disorder which partially mitigate the applicant’s offenses. As there is an association between PTSD and comorbid substance abuse, there is a nexus between the applicant’s misconduct characterized by wrongful use of marijuana and the diagnosis such that the misconduct is mitigated. However, given that distribution of drugs and wrongful introduction of drugs to a military facility are not natural sequela of PTSD, there is no nexus between the applicant’s remaining misconduct and the disorder, thus no mitigation. The potentially mitigating diagnoses of Depression and Anxiety Disorder also only mitigate drug use and fail to mitigate the remaining misconduct, as neither PTSD, Depressive Disorder, or Anxiety Disorder impaired the applicant’s ability to differentiate between wrong and right and adhere to the right. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s Post Traumatic Stress Disorder, Anxiety Disorder, or Depression outweighed the applicant’s medically unmitigated offenses of distribution of drugs and wrongful introduction of drugs to a military facility. b. Response to Contention(s): The applicant contends the discharge was unjustified because of misdiagnosed PTSD. The Board liberally considered this contention but determined that the available evidence did not support a conclusion that the applicant’s Post Traumatic Stress Disorder, Anxiety Disorder, and Depression outweighed the applicant’s medically unmitigated offenses of distribution of drugs and wrongful introduction of drugs to a military facility. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration to all the evidence before the Board, the applicant’s Post Traumatic Stress Disorder, Anxiety Disorder, and Depression did not outweigh the applicant’s medically unmitigated distribution of drugs and wrongful introduction of drugs to a military facility offenses. The Board considered the totality of the applicant's service record and determined that there are no mitigating factors warranting a discharge upgrade. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. Therefore, the applicant’s Bad Conduct discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or meritorious service warranted for an upgrade to Honorable discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL – Absent Without Leave AMHRR – Army Military Human Resource Record BCD – Bad Conduct Discharge BH – Behavioral Health CG – Company Grade Article 15 CID – Criminal Investigation Division ELS – Entry Level Status FG – Field Grade Article 15 GD – General Discharge HS – High School HD – Honorable Discharge IADT – Initial Active Duty Training MP – Military Police MST – Military Sexual Trauma N/A – Not applicable NCO – Noncommissioned Officer NIF – Not in File NOS – Not Otherwise Specified OAD – Ordered to Active Duty OBH (I) – Other Behavioral Health (Issues) OMPF – Official Military Personnel File PTSD – Post-Traumatic Stress Disorder RE – Re-entry SCM – Summary Court Martial SPCM – Special Court Martial SPD – Separation Program Designator TBI – Traumatic Brain Injury UNC – Uncharacterized Discharge UOTHC – Under Other Than Honorable Conditions VA – Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210001590 1