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 General (Under Honorable Conditions). The applicant seeks relief contending, in effect, being diagnosed with post-traumatic stress disorder (PTSD) and the applicant is seeking veterans' benefits for the condition. b. Board Type and Decision: In a records review conducted on 1 June 2023, and by a 5-0 vote, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, the Board determined that clemency is warranted based on the length and quality of the applicant's service, to include combat service. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General, Under Honorable Conditions, and 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 / Bad Conduct b. Date of Discharge: 3 August 2007 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 22, dated 30 August 2005, on 27 April 2005, the applicant was found guilty of the following: Charge I, in violation of Article 85: Not Guilty, but guilty of the lesser-included offense of AWOL, in violation of Article 86. Specification: Did, on 15 April 2004, without authority, remain absent from the unit until 4 March 2005. Plea: Guilty. Finding: Guilty except the words "and with the intent to remain away therefrom permanently. Charge II, in violation of Article 86. Specifications 1 through 4, dismissed on motion of the Trial Counsel. Charge III, in violation of Article 90. Specification: Did on 15 April 2004, willfully disobeyed a lawful command from Lieutenant Colonel M.S.M., to perform extra duty for 45 days. Plea: Guilty. Additional Charge, in violation of Article 112a. Specification: Did on 4 February and 4 March 2005, wrongfully use marijuana, a controlled substance. Plea: Guilty. Finding: Guilty. (2) Adjudged Sentence: Reduction to E-1; forfeiture of $822 pay per month for four months; to be confined for four months, and to be discharged from the service with a bad conduct discharge. (3) Date / Sentence Approved: 30 August 2005 / The sentence was approved and, except for the part of the sentence extending to a bad conduct discharge, would be executed. The applicant was credited with 54 days of confinement towards the sentence to confinement. (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: 26 January 2007 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 June 2002 / Indefinite b. Age at Enlistment / Education / GT Score: 34 / Associate's Degree / 109 c. Highest Grade Achieved / MOS / Total Service: E-6 / 92G30, Food Service Operations / 17 years, 10 months, 25 days d. Prior Service / Characterizations: RA,13 August 1986 - 7 August 1989 / HD RA, 8 August 1989 - 30 March 1992 / HD RA, 31 March 1992 - 22 November 1993 / HD RA, 23 November 1993 - 22 November 1996 / HD USAR, 23 November 1996 - 20 March 1998 / HD (Break in Service) RA, 23 June 2000 - 24 June 2002 / HD e. Overseas Service / Combat Service: Germany, Hawaii, SWA / Kuwait - Saudi Arabia (5 January 1990 - 23 April 1991) f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, SWASM-BSS, GWOTSM, HSM, NCOPDR, ASR, OSR, KLM-SA, KLM-KU / The applicant's AMHRR reflects award of six AAMs, three AGCMs, two NDSMs, SWASM with 3BSS, and two NCOPDRs; however, the exact number of awards as reflected in the applicant's AMHRR are not reflected on the DD Form 214 under review. g. Performance Ratings: June 2002 - August 2003 / Among the Best h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in the previous paragraph 3c. DD Form 2624, dated 5 December 2003, reflects the applicant tested positive for THC (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 20 November 2003. DD Form 2624, dated 8 December 2003, reflects the applicant tested positive for THC (marijuana), during an Inspection Unit (IU) urinalysis testing, conducted on 26 November 2003. Four Personnel Action forms, reflect the applicant's duty status changed as follows: From "Absent Without Leave (AWOL) [sic]," to AWOL, effective 23 December 2003; From "Absent from Leave," to Present for duty (PDY)," 22 January 2004; From "Confined by Civil Authorities (CCA)," to "CMA," effective 2 March 2004; From "Present for Duty (PDY)," to "Absent Without Leave (AWOL)," effective date 15 April 2004; and From "AWOL" to "Dropped From Rolls (DFR)," effective date 16 May 2004. Field Grade Article 15, dated 2 February 2004, for: Being absent without leave (from 23 December 2003 to 22 January 2004); Failing to go at the time prescribed to the appointed place of duty (26 January 2004); and Wrongfully using a controlled substance, to wit: marijuana (between 22 October and 20 November 2003). The punishment consisted of a reduction to E-5; forfeiture of $1,184 pay per month for two months; and extra duty for 45 days. Field Grade Article 15, dated 10 March 2004, for: On 14 occasions, failing to go at the time prescribed to the applicant place of duty (between 7 and 19 February 2004); Going from place of duty (13 February 2004); Being absent without leave (from 20 February to 2 March 2004); and Willfully disobeying a lawful command from Major J. W., a superior commissioned officer, to report to all formations (between 20 February and 2 March 2004). The punishment consisted of a reduction to E-4; forfeiture of $945 pay per month for two months; and extra duty for 45 days. Deserter / Absentee Wanted by the Armed Forces, dated 17 May 2004, reflects the applicant with intent to remain away was absent from the unit from 15 April 2004 until 16 May 2004. Report of Return of Absentee, dated 4 March 2005, reflects the applicant's absence began on 15 April 2004 and the applicant surrendered to military authorities on 3 March 2005. Numerous Developmental Counseling Forms, for various acts of misconduct: failing to report to extra duty formation; not returning to extra duty; testing positive for THC. The packet included several counseling forms which were not signed by the applicant because the applicant was unavailable. i. Lost Time / Mode of Return: 371 days: AWOL, 15 April 2004 - 4 March 2005 / Surrendered to Military Authorities CMA, 27 April 2005 - 12 June 2005 / Released from Confinement AWOL for 30 days, 23 December 2003 to 22 January 2004. This period is not annotated on the DD Form 214, block 29. j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provided a DD Form 293 that states the applicant is seeking Veteran's benefits for PTSD. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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 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 an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially mitigating diagnoses/experiences: None. However, the applicant asserts PTSD, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant asserted PTSD during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that applicant's official medical records do not reflect any behavioral health conditions that mitigate the applicant's offenses of AWOL (lesser-included offense) or willful disobeying a lawful order. The applicant was not diagnosed in service with any behavioral health conditions or diagnosed or service connected by the VA for any behavioral health conditions. While the applicant asserts PTSD, the applicant did not provide any medical documentation that reflect that the applicant experiences PTSD symptoms or has a PTSD diagnosis. Without medical evidence, the Board's Medical Advisor determined that applicant's asserted PTSD does not mitigate the offenses of AWOL (lesser included offense) or willful disobeying a lawful order. (4) Does the condition or experience outweigh the discharge? N/A. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant asserted PTSD does not outweigh the applicant's medically unmitigated offenses of AWOL (lesser included offense) or willful disobeying a lawful order as there is no evidence in the applicant's official records or provided by the applicant, other than the applicant' statement, that the applicant was diagnosed with PTSD or experienced PTSD symptoms. b. Response to Contention(s): The applicant contends being diagnosed with PTSD. The Board considered this contention and determined that the applicant was not diagnosed in service with any BH conditions and is not service connected any BH conditions. While the applicant self-asserts PTSD, the applicant did not provide any medical documentation of a PTSD diagnosis, and without any medical evidence, the Board determined that applicant's asserted PTSD does not mitigate the discharge. However, the Board determined that an upgrade was warranted based on clemency. c. The Board determined the Board determined that clemency is warranted based on the length and quality of the applicant's service, to include combat service. Accordingly, the Board voted to grant partial relief. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because the Board determined that clemency is warranted based on the length and quality of the applicant's service, to include combat service. Thus, the prior characterization is no longer appropriate. The Board did not grant full relief because the Board found that, based on the totality of the applicant's record, that the applicant's offenses of AWOL (lesser-included offense) and willful disobeying a lawful order fell below that level of meritorious service warranted for an upgrade to Honorable Discharge. (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: General, Under Honorable Conditions 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 AR20210001976 1