1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the actions were a direct result of a diagnosis of PTSD. The applicant was diagnosed and court-martialed rather than medically boarded out. The applicant was threatened with a heavy sentence of ten years if the applicant did not accept a plea agreement. The applicant does not believe the JAG appointed defense counsel represented the applicant to the best of their ability and believes counsel lied, misled, and deceived the applicant as much as possible in order to get the applicant in agreement with the plea and in turn further their career. The applicant was caught using a civilian prescription of Xanax which the applicant was using to cope with PTSD. Counsel told the applicant to admit to trying to sell them. Counsel stated the judge needed to believe the reasoning or the judge would not believe the applicant's story. The applicant was not selling drugs; however, was getting help from a civilian doctor after begging for help from military doctors without being given any. The applicant failed a urinalysis for marijuana. The applicant began using it once the civilian doctor was threatened to lose their license if they continued to treat the applicant. After the applicant returned from Iraq, after combat, where the applicant had been ordered to kill civilians and witnessing the coverups of hundred of murders. The applicant lost all respect for the Army, and chain of command and no longer wanted any part of the system and made it clear, they would not be the best of their ability doing anymore Soldiering. The chain of command starting hazing and mistreating the applicant as a human let alone an enlisted Soldier. The applicant no longer wanted to show up for anything. By not showing up the applicant disobeyed the chain of command. The applicant's underage drinking was also a coping mechanism. The applicant registered a .04 on a field BAT and was arrested. The applicant was never given a true blood alcohol test and was told they were underage drinking. The applicant was court-martialed after being diagnosed with PTSD for crimes which were just the applicant coping with the PTSD. The applicant was outspoken about war crimes committed and ordered by the chain of command. The applicant was referred to as a cancer which was better to be cut out rather than treated. The applicant believes they were lied to from the first day they walked into see a recruiter. b. Board Type and Decision: In a records review conducted on 8 June 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD mitigating the applicant's misconduct of FTRs, disobeying lawful commands, use of marijuana, possession of Xanax, and driving under the influence, and the totality of the record to include the applicant's length and quality of service outweighing the remaining basis for applicant's separation - false official statement. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-3. 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 / General (Under Honorable Conditions) b. Date of Discharge: 31 March 2006 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 3, dated 6 February 2004, on 12 December 2003, the applicant was charged with: Charge I, in violation of Article 86: Specification 1: On divers occasions, without authority, fail to go at the time prescribed to the appointed place of duty, to wit: Unit 0630 accountability and PT formations at the Battalion motor pool on 16, 17, 21, 22, and 23 October 2003. Guilty, consistent with the plea. Specification 2 and 3: Dismissed by the Military Judged based on a motion by the defense counsel. Charge II, in violation of Article 90: Specification 1: Not Guilty. Specification 2: On divers occasions, from on or about 10 September 2003 to on or about 31 October 2003, willfully disobey a lawful command from a superior commissioned officer. Guilty, consistent with the plea. Specification 3: On or about 24 October 2003, willfully disobey a lawful command from a superior officer. Guilty, consistent with the plea. Charge III: In violation of Article 107. The Specification: on or about 21 October 2003, with intent to deceive, make to SGT C. and official statement, which statement was totally false. Guilty, consistent with the plea. Charge IV: In violation of Article 112a: Specification 1: At an unknown location, between on or about 15 September 2003, and on or about 29 September 2003, wrongfully use marijuana. Guilty, consistent with the plea. Specification 2: On or about 5 August 2003, wrongfully possess 90 pills of 2mg Xanax (Alprazolam), a Schedule IV Controlled Substance. Charge V: Article 134. The Specification: On or about 24 October 2003, while under the legal drinking age of 21, wrongfully drive a motor vehicle while the blood alcohol concentration was greater than .02 grams within three hours of driving. Guilty, consistent with the plea. (2) Adjudged Sentence: Forfeiture of $767 pay per month for six months; to be confined for six months; and to be discharged from the service with a Bad Conduct discharge. (3) Date / Sentence Approved: 6 February 2004 / Only so much of the sentence as provides for confinement for four months, forfeiture of $767 pay per month for six months, and discharge from the service with a bad-conduct discharge was approved, and except for the part of the sentence extending to a bad-conduct discharge, would be executed. (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 9 February 2006. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 October 2001 / 3 years b. Age at Enlistment / Education / GT Score: 18 / GED / 120 c. Highest Grade Achieved / MOS / Total Service: E-2 / 19K10, M1 Armor Crewman / 4 years, 2 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait (1 March 2002 - 30 September 2002; 1 January 2003 - 31 July 2003) f. Awards and Decorations: NDSM, AFEM, OSR, GWOTSM, ICM-2BS g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant's DD Form 214, reflects the applicant had not completed the first full term of service. The applicant was discharged under the authority of AR 635-200, chapter 3, with a narrative reason of Court-Martial, Other. The DD Form 214 was not authenticated with the applicant's signature. The applicant had lost time for the period 7 November 2003 to 12 February 2004. SPCO as described in paragraph 3c(1). i. Lost Time / Mode of Return: 97 days (CMA, 7 November 2003 - 12 February 2004) / Released from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: Report of Medical History, dated 2 September 2002, the examining medical physician noted in the comments section: Depression: Treated by MH, recommend continued care. Medical Record, Chronological Record of Medical Care, dated 7 August 2003, reflects the applicant was on leave after returning from Operation Iraqi Freedom. SM stated since returning, the SM has been experiencing symptoms which resemble those of Acute Stress Disorder. SM states they would like to receive individual counseling to assist with the issues. Medical Record, Chronological Record of Medical Care, dated 16 September 2003, reflects SM stated having nightmares. SM is still having problems sleeping. Medical Record, Chronological Record of Medical Care, dated 17 September 2003, SM stated while on extra duty, SM had a panic attack. Medical Center Enterprise, Discharge Summary, dated 8 July 2005, reflects the applicant was diagnosed with: Severe laceration of the right arm; PTSD; and acute psychological problems with combative behavior; marijuana use; suicidal ideations; and alcohol intoxication. Southeast Alabama Medical Center, Discharge Summary, dated 31 July 2005, reflects the applicant was diagnosed with: Axis I: PTSD; Generalized Anxiety Disorder; Mood Disorder, NOS; and Panic Disorder. Clinical Report, dated 11 September 2016, reflects the applicant attempted suicide by overdosing on amphetamine, benzodiazepine and alcohol. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; listed enclosures 1 through 8; ADRB Hearing data sheet with listed documents; medical records. 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. 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 narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 3, AR 635-200 with general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Court-Martial (Other)," and the separation code is "JJD." Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635- 5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the discharge should have been for medical reasons. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant contends the actions were a direct result of PTSD. The applicant provided several medical documents indicating a diagnosis of PTSD. The applicant provided a copy of Medical Center Enterprise, Discharge Summary, dated 8 July 2005, which reflects the applicant was diagnosed with: Severe laceration of the right arm; PTSD; and acute psychological problems with combative behavior; marijuana use; suicidal ideations; and alcohol intoxication and a copy of Southeast Alabama Medical Center, Discharge Summary, dated 31 July 2005, which reflects the applicant was diagnosed with: Axis I: PTSD; Generalized Anxiety Disorder; Mood Disorder, NOS; and Panic Disorder. The AMHRR does not contain a mental status evaluation (MSE). The applicant contends the JAG appointed counsel did not represent the applicant to the best of their ability. The applicant did not submit any evidence, other than the applicant's statement, to support the contention. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends being hazed and mistreated by the chain of the command. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The third-party statements provided with the application speak highly of the applicant and recognize the applicant's good conduct before and while serving in 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: PTSD, Generalized Anxiety Disorder, Mood Disorder NOS, Panic Disorder, Depression, and Acute Stress Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with PTSD, Generalized Anxiety Disorder, Mood Disorder NOS, Panic Disorder, Depression, and Acute Stress Disorder. Applicant is also service connected by the VA for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that there is evidence of behavioral health conditions that provide partial mitigation for the misconduct that led to applicant's separation. Applicant was diagnosed in service with PTSD, Generalized Anxiety Disorder, Mood Disorder NOS, Panic Disorder, Depression, and Acute Stress Disorder. Applicant is also service connected by the VA for PTSD. Given the nexus between PTSD, avoidance, difficulty with authority, and self-medicating with substances, applicant's PTSD mitigates the FTRs, disobeying lawful commands, use of marijuana, possession of Xanax, and driving under the influence. The applicant's offense of making a false official statement is not mitigated since none of applicant's behavioral health conditions, including PTSD interfere with the ability to distinguish between right and wrong and act in accordance with 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, while the applicant's misconduct of FTR, disobeying lawful commands, use of marijuana, possession of Xanax, and driving under the influence is mitigated by the applicant's behavioral health conditions, the available evidence did not support a conclusion that the applicant's PTSD, Generalized Anxiety Disorder, Mood Disorder NOS, Panic Disorder, Depression, and Acute Stress Disorder outweighed the unmitigated basis for applicant's separation - false official statement. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention ultimately determined to upgrade the narrative reason for discharge based on the applicant's PTSD mitigating the applicant's misconduct of FTRs, disobeying lawful commands, use of marijuana, possession of Xanax, and driving under the influence, and the totality of the record to include the applicant's length and quality of service outweighing the remaining basis for applicant's separation - false official statement. (2) The applicant contends the actions were a direct result of PTSD. The Board considered this contention and ultimately determined to upgrade the applicant's discharge based on the applicant's PTSD mitigating the applicant's misconduct of FTRs, disobeying lawful commands, use of marijuana, possession of Xanax, and driving under the influence, and the totality of the record to include the applicant's length and quality of service outweighing the remaining basis for applicant's separation - false official statement. (3) The applicant contends the JAG appointed counsel did not represent the applicant to the best of their ability. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD mitigating the applicant's misconduct of FTRs, disobeying lawful commands, use of marijuana, possession of Xanax, and driving under the influence, and the totality of the record to include the applicant's length and quality of service outweighing the remaining basis for applicant's separation - false official statement. (4) The applicant contends being hazed and mistreated by the chain of the command. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based the aforementioned reasons. c. The Board determined the discharge is inequitable based on the applicant's PTSD mitigating the applicant's misconduct of FTRs, disobeying lawful commands, use of marijuana, possession of Xanax, and driving under the influence, and the totality of the record to include the applicant's length and quality of service outweighing the remaining basis for applicant's separation - false official statement. Therefore, the Board voted to grant relief in the form of an upgrade. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable based on the applicant's PTSD mitigating the applicant's misconduct of FTRs, disobeying lawful commands, use of marijuana, possession of Xanax, and driving under the influence, and the totality of the record to include the applicant's length and quality of service outweighing the remaining basis for applicant's separation - false official statement. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The Board voted to change the RE code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20210002328 1