1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is bad conduct. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge was inequitable and improper because the applicant’s counsel advised the applicant after six months the discharge would automatically be upgraded to general (under honorable conditions) and afterwards the applicant could apply for another upgrade. The applicant states the discharge was inequitable because of suffering from stress and Post-Traumatic Stress Disorder (PTSD), which was not considered at trial. The applicant’ further contends that during the investigation, a question was asked which violated the “Don’t Ask Don’t Tell” policy and the applicant’s refusal to answer may have caused a bias towards the applicant. The applicant also contends that the discharge is inequitable because undue consideration was given to the conditions of the applicant’s special court-martial – specifically, the applicant was given the opportunity to remain in the military, if the applicant would give names of superiors who furnished the steroids. The use of steroids was widespread in the unit, including commanding officers. b. Board Type and Decision: In a records review conducted on 26 August 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Court-Martial (Other) / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 28 December 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 28, dated 17 June 2005, on 8 March 2005, the applicant was found guilty of the following: Charge I: Violating Article 92, UCMJ, Specification: On 13 December 2004, for wrongfully possessing drug paraphernalia, to wit; a pipe used for inhaling hashish and a hypodermic syringe used for injecting steroids. Charge II: Violating Article 112a, UCMJ, Specification 1: On 29 March 2004, wrongfully imported approximately 30 vials of steroids, a Schedule II controlled substance, into the customs territory of the United States on board an aircraft, to wit: a return flight from Operation Iraqi Freedom. Specification 2: On or about 1 March and 30 April 2004, wrongfully used steroids, a Schedule II controlled substance. Specification 3: On 1 November 2004, wrongfully imported some amount of hashish marijuana into the customs territory of the United States on board an aircraft used by the armed forces, to wit: a return flight from Operation Enduring Freedom in Afghanistan. Specification 4: On or about 1 November and 7 December 2004, wrongfully used cocaine and marijuana. (2) Adjudged Sentence: Reduction to E-1; to be confined for 5 months, and to be discharged from the service with a Bad Conduct discharge. (3) Date / Sentence Approved: 17 June 2005 / only so much of the sentence, a reduction E-1, confinement for 140 days, and 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: 11 July 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 January 2003 / 4 years b. Age at Enlistment / Education / GT Score: 27 / Some college / NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 74D2P, Chemical Operations Specialist / 3 years, 8 months, 26 days d. Prior Service / Characterizations: USARCG, 2 December 2002 – 1 January 2003 / NA e. Overseas Service / Combat Service: NIF f. Awards and Decorations: NDSM, GWOTSM g. Performance Ratings: NIF h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Orders 353-0700, dated 19 December 2006, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 28 December 2006 from the Regular Army. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) was not authenticated by the applicant’s signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 3, by reason of Court-Martial (Other), with a characterization of service of Bad Conduct. The applicant had not completed the first full term of service. i. Lost Time / Mode of Return: CMA, 8 March 2005 – 8 July 2005 / Released from confinement j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Other Behavioral Health Condition(s): The applicant provided a letter dated 8 August 2009, show the applicant was diagnosed with PTSD, Major Depressive Disorder, Substance Dependence, Adjustment to life cycle transition, relationship discord, and incarceration. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214, medical letters. 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 3-11 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. (4) 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. (5) 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. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The service Army Military Human Resource Record (AMHRR) indicates the applicant was adjudged guilty by a Special 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. AR 15-180 authorizes the Board to change the discharge of former Servicemembers adjudged a sentence by a court-martial (other than a general court-martial) 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 applicant’s discharge was inequitable because undue consideration was given to the conditions of the applicant’s Special court-martial. Specifically, the applicant contends that had the applicant provided the names of superior officers who supplied the steroids, the applicant could have remained in the service. The applicant contends the discharge was improper because during the discharge process counsel advised the applicant the discharge would be automatically upgraded after the discharge. The applicant provided no evidence, other than the applicant’s statement, to support the contention of inequity or bias. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both were improper or inequitable. The applicant contends the applicant’s discharge was improper because the applicant’s PTSD was not considered at trial. The applicant provided no evidence, other than the statement, to support the contention. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends that the applicant’s discharge is inequitable because during the investigation questions were asked that violated the “Don’t Ask, Don’t Tell Policy and the applicant’s refusal to answer some questions may have cause bias to the applicant. 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 the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: PTSD and Major Depressive Disorder (MDD). (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that the applicant’s PTSD existed during military service. Applicant’s MDD was diagnosed post service, and there is no evidence that it existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant’s PTSD mitigates the applicant’s offenses of wrongful use of cocaine and marijuana and wrongful possession of drug paraphernalia - pipe used for inhaling hashish marijuana as there is a nexus between PTSD and self-medication. However, the Board Medical Advisor determined that the applicant’s PTSD and MDD do not mitigate the applicant’s steroid use as there is no natural sequelae between applicant’s PTSD and MDD and steroids use offense because steroids are not a substance associated with the self-medication of PTSD or MDD. Also, the applicant’s offenses of importing steroids or wrongful possession of hypodermic syringe used for injecting steroids are not mitigated by PTSD or MDD since PTSD and MDD do not interfere with one’s 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 PTSD does mitigate the applicant’s wrongful use of cocaine and marijuana, possessing drug paraphernalia - specifically a pipe used for inhaling hashish, the applicant’s PTSD and MDD do not outweigh the applicant’s medically unmitigated offenses – wrongful steroid use, wrongful importing of 30 vials of steroids, and wrongful possession of hypodermic syringe used for injecting steroids. b. Response to Contention(s): (1) The applicant contends the discharge was improper and inequitable because during the discharge process the applicant’s counsel advised the applicant that the applicant’s discharge would be automatically upgraded after the applicant’s discharge. The Board considered this contention and determined that the Army does not have, nor has it ever had, a policy to automatically upgrade discharges and there is no evidence in the applicant’s official record or provided by the applicant other than the applicant’s statement that the applicant’s counsel rendered advice regarding an automatically discharged upgrade. Therefore, the applicant’s discharge is proper and equitable. (2) The applicant contends the applicant’s PTSD was not considered at trial. The Board liberally considered the fact that the applicant’s PTSD was not diagnosed until after the applicant’s trial. The Board also considered the applicant’s request for a discharge upgrade in light of the PTSD diagnosis and determined that, while the applicant’s PTSD does mitigate the applicant’s wrongful use of cocaine and marijuana, possessing drug paraphernalia - specifically a pipe used for inhaling hashish, the applicant’s PTSD and MDD do not outweigh the applicant’s medically unmitigated offenses – wrongful steroid use, wrongful importing of 30 vials of steroids, and wrongful possession of hypodermic syringe used for injecting steroids. (3) The applicant contends the applicant’s discharge was inequitable because undue consideration was given to the conditions of the applicant’s Special court-martial. Specifically, the applicant contends that had the applicant provided the names of superior officers who supplied the steroids, the applicant could have remained in the service. The Board considered this contention and determined there is no evidence in the applicant’s official record or provided by the applicant other than the applicant’s statement to support that the Command acted in an arbitrary or capricious manner during the applicant’s court-martial. Therefore, the applicant’s discharge is proper and equitable. (4) The applicant contends that the applicant’s discharge is inequitable because during the investigation questions were asked that violated the “Don’t Ask, Don’t Tell Policy and the applicant’s refusal to answer some questions may have cause bias to the applicant. The Board considered this contention and determined there is no evidence in the applicant’s official record or provided by the applicant other than the applicant’s statement to support that the Command acted violated this policy or acted in an arbitrary or capricious manner. Therefore, the applicant’s discharge is proper and equitable. 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 after applying liberal consideration of all the evidence because, while the applicant’s PTSD does mitigate the applicant’s wrongful use of cocaine and marijuana, possessing drug paraphernalia - specifically a pipe used for inhaling hashish, the applicant’s PTSD and MDD do not outweigh the applicant’s medically unmitigated offenses – wrongful steroid use, wrongful importing of 30 vials of steroids, and wrongful possession of hypodermic syringe used for injecting steroids. The Board also considered the applicant’s contentions of impropriety regarding the advice of the applicant’s counsel concerning an automatic discharge upgrade after six months and found that insufficient evidence to warrant a discharge upgrade. The Board also considered the applicant’s inequity contentions relating to undue considerations at the applicant’s court-marital, being advised by counsel of an automatic discharge upgrade after six months, and violation of the “Don’t Ask, Don’t Tell Policy during an investigation that may have caused bias towards the applicant and found insufficient evidence to warrant a discharge upgrade. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. Therefore, the applicant’s Bad Conduct Discharge was proper and equitable as the applicant’s wrongful steroid use, wrongful importing of 30 vials of steroids, and wrongful possession of hypodermic syringe used for injecting steroids fell below that level of satisfactory service warranted for a General Discharge or meritorious service warranted for an upgrade to Honorable. (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 AR20210002568 1