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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant was a good Soldier during the first enlistment. The applicant’s chain of command had faith in the applicant’s ability to carry out the duties, which were numerous and above the applicant’s pay grade. After the applicant’s tour in Ramadi / Fallujah, the applicant was adrift. The applicant sought mental health care at Evans Army Hospital at Fort Carson, and received drugs but no support. Despite the fact the applicant spiraled out of control, senior noncommissioned officers (NCOs) called upon the applicant to police up other miscreants. When the other than honorable board was convened, the applicant was neither notified nor able to attend the board because the applicant was on brigade staff duty. During the court-martial proceedings, members of the applicant’s chain of command denied the applicant had post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI), although the conditions were annotated in the applicant’s medical records. b. Board Type and Decision: In a records review conducted on 16 February 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 / General (Under Honorable Conditions) b. Date of Discharge: 23 September 2008 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 20, dated 13 July 2007, on 25 April 2007, the applicant was found guilty of the following: Charge I, in violation of Article 86, UCMJ: Specification 1: On 14 February 2007, without authority, being absent from the unit and remained absent until on 15 February 2007. Plea: Guilty. Specification 2: On 20 February 2007, without authority, being absent from the unit and remained absent until apprehended on 22 February 2007. Plea: Guilty. Specification 3: On 27 February 2007, without authority, being absent from the unit and remained absent until 8 March 2007. Plea: Guilty. Charge II, in violation of Article 112a, UCMJ: Specification 1: Between 16 and 18 December 2006, wrongfully used cocaine. Plea: Guilty. Specification 2: Between 16 and 18 December 2006, wrongfully used methamphetamine. Plea: Guilty. Additional Charge I, Article 92, UCMJ, The Specification: On 7 September 2006, was derelict in the performance of duties by willfully failing to give a proper uncontaminated urine specimen. Plea: Guilty. Additional Charge III, Article 134, UCMJ. (This charge and its specification were joined to the court-martial after arraignment without objection by the defense.) The Specification: On 14 February 2007, wrongfully received a laptop computer, of a value of over $500, the property of Private First Class (PFC) D.G.D., which property, the applicant then knew, had been stolen. Plea: Guilty. The military judge amended the specification to conform to the accused’s plea, by substituting the number “26” for the number “14,” without objection. (2) Adjudged Sentence: To be confined for four months; to forfeit $867 pay per month for four months; and to be discharged from the service with a bad conduct discharge. (3) Date / Sentence Approved: 13 July 2007 / The sentence 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. Special Court-Martial Order Number 70, dated 24 April 2008, reflects the United States Army Court of Criminal Appeals affirmed the sentence. (5) Date Sentence of BCD Ordered Executed: 24 April 2008 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 January 2004 / 3 years / The Army Military Human Resource Record (AMHRR) is void of any enlistment contract retaining the applicant on active duty after the initial enlistment period. b. Age at Enlistment / Education / GT Score: 18 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 13B10, Cannon Crewmember / 4 years, 6 months, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea, SWA / Iraq (8 August 2004 – 25 July 2005) f. Awards and Decorations: NDSM, GWOTSM, KDSM, ICM-CS, ASR, OSR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 14, dated 12 June 2007, reflects on 8 March 2007, the applicant was found guilty of the following: Charge I, Article 92, UCMJ: Specification 1: On 15 February 2006, without authority, being absent from the unit and remained absent until 14 March 2006. Plea. Guilty. Specifications 2 through 6: On 9 August 2006; 6 September 2006; and 4, 23, and 31 October 2006, failed to go at the time prescribed to the appointed place of duty. Pleas: Guilty. Charge II, Article 91, UCMJ, The Specification: On 6 September 2006, willfully disobey a lawful order from Staff Sergeant J. A. S., a superior noncommissioned officer (NCO), to go to Evans Anny Community Hospital for a medical evaluation. Plea: Guilty. Charge IV, Article 112a, UCMJ: Specifications 1, 3, and 4: Between 5 and 7 February 2006, 11 and 13 February 2006, and 5 and 7 September 2006, wrongfully use methamphetamine. Plea: Guilty. Specification 2: Between 5 and 7 February 2006, wrongfully use cocaine. Plea: Guilty. Sentence adjudged on 8 March 2007: To be confined for four months. The sentence was approved and ordered executed on 12 June 2007. Special Court-Martial Order Number 20, dated 13 July 2007, as described in previous paragraph 3c. i. Lost Time / Mode of Return: 52 days: AWOL, 16 February 2006 – 24 March 2006 / NIF / This AWOL charge was amended in court- martial proceedings to AWOL from 15 February 2006 to 14 March 2006. AWOL, 14 February 2007 – 15 February 2007 / NIF AWOL, 20 February 2007 – 22 February 2007 / Apprehended AWOL, 27 February 2007 – 8 March 2007 / NIF j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided Madigan Army Medical Center Discharge Summaries, dated 16 May 2016, reflecting the applicant was assessed with chronic PTSD; acoustic trauma, explosive; post-concussion syndrome; tinnitus; amphetamine abuse; barbiturate abuse; cocaine abuse; occupational problem, and depression. The records indicated the applicant had a TBI while in Iraq, last episode was June 2005. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Discharge Summaries; five third-party statements; Hagel Memo; Carter Memo. 6. POST SERVICE ACCOMPLISHMENTS: The applicant, through a third-party statement, contends gaining personal and professional growth; being married with a family; and finding a way to support the family. 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 a 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 record of service, 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 PTSD and TBI affected behavior which led to the discharge. The applicant provided medical documents indicating the applicant was seen by medical personnel with and was assessed with medical problems: Chronic PTSD; acoustic trauma, explosive; post- concussion syndrome; tinnitus; amphetamine abuse; barbiturate abuse; cocaine abuse; occupational problem, and depression. The records indicated the applicant had a TBI while in Iraq, last episode was June 2005. The AMHRR is void of a mental status evaluation. The applicant contends members of the command denied the applicant had PTSD or TBI during court-martial proceedings. The record is void of the records of trial and the applicant did not provide any evidence, other than the applicant’s statement to support this contention. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends receiving drugs for the mental health conditions but the applicant did not receive any support. Army Regulation 600-85, paragraph 7-3 entitled voluntary (self) identification and referral, states voluntary (self) ID is the most desirable method of identifying substance use disorder. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of these problems has the personal obligation to seek help. Soldiers seeking self-referral for problematic substance use may access services through BH services for a SUD evaluation. The Limited Use Policy exists to encourage Soldiers to proactively seek help. 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 third party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good military service or good conduct after leaving the Army. The applicant, through a third-party statement, contends gaining personal and professional growth; being married with a family; and finding a way to support the family. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 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: Adjustment Disorder, Chronic PTSD, Depression, and Post-Concussion Syndrome. (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 an Adjustment Disorder, Chronic PTSD, Depression, and Post-Concussion Syndrome. The VA has service connected applicant’s 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 the applicant was diagnosed in service with an Adjustment Disorder, Chronic PTSD, Depression, and Post- Concussion Syndrome. The VA has service connected applicant’s PTSD. Applicant’s BH conditions partially mitigate the basis for separation. Given the nexus between PTSD and avoidance, applicant’s PTSD may have contributed to AWOLs. And given the nexus between PTSD/Depression and self-medicating with substances, there may have been an association between these BH conditions and wrongful use of cocaine and methamphetamine. However, there is no natural sequela between any of applicant’s BH conditions and failing to give a proper uncontaminated urine specimen or receiving stolen property since none of conditions 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 BH conditions mitigate AWOL, and wrongful use of cocaine and methamphetamine misconduct, the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Chronic PTSD, Depression, and Post-Concussion Syndrome outweighed the medically unmitigated basis for applicant’s separation – dereliction, and receiving stolen property – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends PTSD and TBI affected behavior which led to the discharge. The Board considered this contention and determined that while the applicant’s BH conditions mitigate AWOL, and wrongful use of cocaine and methamphetamine misconduct, the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Chronic PTSD, Depression, and Post-Concussion Syndrome outweighed the medically unmitigated basis for applicant’s separation – dereliction of duty and receiving stolen property. (2) The applicant contends members of the command denied the applicant had PTSD or TBI during court-martial proceedings. The Board considered this contention and found insufficient evidence in the AMHRR, and in the evidence provided by the applicant, of any arbitrary or capricious action taken by Command such that rebuts the presumption of government regularity. Accordingly, the Board found that the discharge was proper and equitable. (3) The applicant contends receiving drugs for the mental health conditions, but the applicant did not receive any support. The Board considered this contention and found insufficient evidence in the AMHRR, and in the evidence provided by the applicant, of any arbitrary or capricious action taken by Command such that rebuts the presumption of government regularity. Accordingly, the Board found that the discharge was proper and equitable. (4) The applicant contends good service, including a combat tour. The Board considered this contention, but determined that the quality of the applicant’s service did not outweigh the medically unmitigated misconduct of dereliction of duty and receiving stolen property. (5) The applicant, through a third-party statement, contends gaining personal and professional growth; being married with a family; and finding a way to support the family. The Board considered this contention, but determined that the applicant’s post-service conduct did not outweigh the medically unmitigated misconduct of dereliction of duty and receiving stolen property. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. 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 not to change the applicant’s characterization of service because, while the applicant’s BH conditions mitigate AWOL, and wrongful use of cocaine and methamphetamine misconduct, the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Chronic PTSD, Depression, and Post-Concussion Syndrome outweighed the medically unmitigated basis for applicant’s separation – dereliction, and receiving stolen property. The Board further considered the applicant’s contentions and found there is insufficient evidence of any arbitrary or capricious action taken by Command resulting in any inequity. 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 GD was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD . (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, 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 / 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 AR20210002241 1