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, it is unjust to punish the applicant for one mistake in three different ways. The applicant received a rank reduction for being dropped from the rolls after being AWOL for more than 30 days. The applicant served ten months of incarceration at Fort Knox MCF, so it is an injustice to still have a bad conduct discharge on top of the other punishments received by the applicant. The applicant's service up until the infraction was above and beyond. The applicant received the Expeditionary Medal as an E-3, was fast tracking to E-4 promotable to Corporal and earned the Expert Infantryman Badge while awaiting a court-martial. The applicant continued to train Soldiers as a team leader even though, the applicant was reduced to E-1. When the applicant returned from AWOL, the applicant continued to uphold professionalism as an Infantryman assigned to the Command Group as the Sergeant Major's driver. The applicant does not deserve to be without VA benefits for the rest of their life because of one mistake. The applicant has service-connected health issues such as PTSD and mild TBI, and other health issues. The applicant has constant headaches due to being around explosions while training and in real world situations on certain missions. The applicant's medical records have been destroyed in a fire, and the applicant does not have any records to present before the Board. Doctors and counselors who have seen the applicant agree the applicant exhibits signs of PTSD and mild TBI as well as tinnitus. The applicant served proudly and above the standard before making the mistake. The applicant was being slotted to attend Ranger school after being promoted to E-4. All the applicant wants are the benefits to which the applicant is entitled. The applicant would reenlist; in fact, the applicant has tried to do so on several occasions; however, the reentry code is preventing the applicant from doing so. Now the applicant is a felon, and it is too late for a career, yet the applicant is willing to join the foreign legion and serve the community in other ways. b. Board Type and Decision: In a records review conducted on 27 April 2023, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service, to include combat service, and the amount of time since misconduct outweighing the discharge. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Under Other Than Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. 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, Sec IV / JJD / RE-4 / Bad Conduct b. Date of Discharge: 10 June 2005 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 13, dated 15 June 2004, on 26 April 2004, the applicant was found guilty of the following: The Charge, in violation of Article 85, UCMJ. On or about 17 December 2002, without authority and with intent to remain away therefrom permanently, was absent from the unit and did remain so absent in desertion until on or about 24 October 2003. Plea: Guilty Finding: Guilty. (2) Adjudged Sentence: Reduction to E-1; forfeit $795 pay per month for 10 months; to be confined for 10 months and 7 days; and to be discharged from the service with a Bad Conduct discharge. (3) Date / Sentence Approved: 15 June 2004 / Only so much of the sentence, a reduction E-1, forfeiture of $795 pay per 10 months, confinement for 6 months, and a bad conduct discharge was approved and, except for the part of the sentence extending to a bad conduct discharge, would be executed. The applicant was credited with 8 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: 25 March 2005 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 February 2001 / 4 years b. Age at Enlistment / Education / GT Score: 21 / High School Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11M10, Fighting Vehicle Infantryman / 3 years, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait (27 March 2002 - 24 September 2002) f. Awards and Decorations: NDSM, ASR, AFEM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Three Personnel Action Forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)," to "Absent Without Leave (AWOL)," effective 17 December 2002; From "Present for Duty (PDY)," to "Confined by Military Authorities (CMA)" effective 26 April 2004; and, From "CMA" to "PDY," effective 13 September 2004. Special Court-Martial Order as describe in previous paragraph 3c(1). i. Lost Time / Mode of Return: 1 year, 2 months, 21 days: AWOL, 17 December 2002 - 23 October 2003 / Apprehended by Civil Authorities CMA, 26 April 2004 - 12 September 2004 / Released from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD form 149; self-authored statement; DD Form 214; Special Court-Martial Order Number 60. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 good service, including a combat tour. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends suffering from PTSD and mild TBI. The applicant's AMHRR contains no documentation of PTSD diagnosis. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any medical condition. The AMHRR does not contain a mental status evaluation. The ARBA sent a letter to the applicant at the address in the application on 6 March 2018 requesting documentation to support a PTSD diagnosis but received no response from the applicant. The applicant contends being punished three times for making one mistake. Special Court- Martial Order Number 13, dated 15 June 2004, reflects on 26 April 2004, the applicant was found guilty of the following: The Charge, in violation of Article 85, UCMJ. On or about 17 December 2002, without authority and with intent to remain away therefrom permanently, was absent from the unit and did remain so absent in desertion until on or about 24 October 2003. The sentence consisted of Reduction to E-1; forfeit $795 pay per month for 10 months; to be confined for 10 months and 7 days; and to be discharged from the service with a Bad Conduct discharge. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. 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. Additionally, the applicant asserts PTSD and TBI, 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 asserts having PTSD and mTBI 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 determined that the applicant's asserted PTSD/TBI could mitigate the applicant's AWOL basis of separation as avoidance is part of the sequela of symptoms associated with PTSD/TBI. However, the Board Medical Advisor was unable to provide a medical opine on whether the applicant's PTSD/TBI actually mitigates the AWOL because the applicant asserts experiencing PTSD/TBI for over 20 years but did not provide documentation of either medical diagnosis at any point during that timeframe. (4) 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 asserted PTSD and TBI diagnoses outweighed the basis for applicant's separation - AWOL - for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends good service, including a combat tour. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention and determined that the applicant's claim of an isolated incident does not mitigate or excuse the applicant's AWOL as the Army affords many avenues to Soldier's including seeking separation for hardship. (3) The applicant contends suffering from PTSD and mild TBI. The Board considered this contention and the applicant's assertion of PTSD and TBI, however the Board could not determine whether the applicant's asserted PTSD and TBI actually outweighed the applicant's AWOL without the Board Medical Advisor determination on medical mitigation. Without additional medical evidence, the Board was unable to determine if the applicant's asserted PTSD and TBI outweighed the applicant's discharge. (4) The applicant contends being punished three times for making one mistake. The Board considered this contention and determined there is insufficient evidence to support the applicant was punished three times, however the Board voted to upgrade the applicant's Characterization of service based on applicant's length of service, combat service and time since applicant's misconduct. (5) The applicant contends an upgrade of the discharge would allow veterans benefits. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (6) The applicant desires to rejoin the Military Service. The Board considered this contention and determined that a change to the applicant's RE code is not warranted as there are no circumstances in the applicant's file that warrant a change to Honorable or the RE code. c. The Board determined that the characterization of service was inequitable based on the applicant's length of service, to include combat service, and the amount of time since misconduct outweighing the discharge. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Under Other Than Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. 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 because to Under Other Than Honorable Conditions based on the applicant's length of service, to include combat service, and the amount of time since misconduct outweighing the discharge. Despite applying liberal consideration of all the evidence before the Board, the applicant's assertion of PTSD and TBI diagnoses did not excuse or mitigate the offenses of AWOL due to insufficient evidence to support the diagnosis and an upgrade to Honorable is not warranted. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Under Other Than Honorable Conditions c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210002021 1