1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 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. The applicant seeks relief contending, in effect, the applicant entered military service at the age of seventeen with essentially incorrigible behavior, which was later diagnosed as a myriad of mental illnesses including bipolar disorder, intermittent explosive personality disorder, and oppositional/defiant disorder. The applicant states failing to disclose mental health issues at enlistment, believing the mental health issues would prevent entry into the military. The applicant stopped using the psychotropic medication regime while on active duty, which contributed to poor decision-making. The applicant states the applicant’s spouse suffered a miscarriage and did not know how to seek emotional support for the loss, given the applicant young age and aggregate inexperience. The applicant used excessive alcohol intake to cope with the family issue, which was a poor decision. The applicant has been diagnosed with Post- Traumatic Stress Disorder (PTSD), which is believed to be a result of abandonment from the applicant’s father and worsened by time in combat. b. Board Type and Decision: In a records review conducted on 1 September 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: 8 January 2007 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: Special Court-Martial Order Number 6, dated 16 November 2006, reflects the applicant was tried by a Special Court-Martial on 4 May 2005, as promulgated in Special Court- Martial Order Number 20. The order however is void from the Army Military Human Resource Record (AMHRR). (2) Adjudged Sentence: Reduction to E-1; to be confined for six months, and to be discharged from the service with a Bad Conduct discharge. (3) Date / Sentence Approved: 4 May 2005 / only so much of the sentence, a reduction E-1, confinement for six months, and a bad conduct discharge was approved and, except for 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: 16 November 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 March 2002 / 4 years b. Age at Enlistment / Education / GT Score: 17 / GED / 114 c. Highest Grade Achieved / MOS / Total Service: E-4 / 74D10, Chemical Operations Specialist / 5 years, 3 months, 3 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Hawaii / None f. Awards and Decorations: ASR / The applicant’s AMHRR reflects awards of the NDSM and GWOTSM, however, the awards are not reflected on the DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. The applicant’s Enlisted Record Brief (ERB), dated 7 August 2007, reflects the applicant was ineligible for reenlistment due to Other; prohibitions not otherwise identified (9X). The applicant was reduced from E-4 to E-1, effective 28 October 2005. Orders 247-0670, dated 4 September 2007, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 8 January 2007 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: 149 days (CMA, 4 May 2005 – 30 September 2005) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a Psychosocial Assessment, dated 10 August 2017, which shows the applicant’s medical history includes depression, alcohol abuse, PTSD, anger management difficulties, and abuse/neglect/ exploitation perpetrated via parent. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; Psychosocial Assessment. 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. 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-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 service record 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. IAW AR 15-180, 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’s Army Military Human Resource Record (AMHRR) is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated with 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 contends suffering incorrigible behavior, which was later diagnosed as a myriad of mental illnesses including bipolar disorder, intermittent explosive personality disorder, and oppositional/defiant disorder, which affected the applicant’s mental behavioral health and led to the discharge. The applicant’s AMHRR contains no documentation of any mental health diagnosis. The applicant provided a Psychosocial Assessment, dated 10 August 2017, which shows the applicant’s medical history includes depression, alcohol abuse, PTSD, anger management difficulties, and abuse/neglect/exploitation perpetrated via parent. The AMHRR is void of a mental status evaluation. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, 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 youth and aggregate inexperience affected the applicant’s seeking assistance from a mental health provider and contributed to the applicant’s use of excessive alcohol to cope with the loss of the applicant’s child. The board considered this contention but, the Board Medical Advisor was unable to provide a medical opine on whether the applicant’s PTSD, Bipolar Disorder, and Depression actually mitigates the applicant’s discharge because the applicant’s official records do not contain the facts and circumstances surrounding the applicant’s discharge and the applicant did not provide any evidence of the basis of the applicant’s separation. The applicant contends that the applicant’s mental health and PSTD would be treated differently in today’s military instead of the applicant’s experience of being permitted to flounder in almost nightly drunkenness, sexual escapades, and self-destruction. The board considered this contention, but the Board Medical Advisor was unable to provide a medical opine on whether the applicant’s PTSD, Bipolar Disorder, and Depression actually mitigates the applicant’s discharge because the applicant’s official records do not contain the facts and circumstances surrounding the applicant’s discharge and the applicant did not provide any evidence of the basis of the applicant’s separation. 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’s PTSD, Bipolar Disorder, and Depression may mitigate the applicant’s discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant Depression, PTSD and Bipolar Disorder during military service, and there is evidence in the medical record of post service diagnoses of PTSD and depression. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After applying liberal consideration, the Board’s Medical Advisor determined that the applicant’s PTSD, Bipolar Disorder, and Depression could mitigate the applicant’s discharge, however, the Board Medical Advisor was unable to provide a medical opine on whether the applicant’s PTSD, Bipolar Disorder, and Depression actually mitigates the applicant’s discharge because the applicant’s official records do not contain the facts and circumstances surrounding the applicant’s discharge and the applicant did not provide any evidence of the basis of the applicant’s separation. Without knowing the facts and circumstances relating to the applicant’s discharge, the Board Medical Advisor is unable to determine if the applicant’s behavioral health conditions mitigate the applicant’s discharge. (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 the applicant’s PTSD, Bipolar Disorder, and Depression do not outweigh the applicant’s discharge as the records relating to the facts and circumstances of applicant’s discharge are unavailable to determine the applicant’s behavioral health conditions are medically mitigating. b. Response to Contention(s): (1) The applicant contends suffering incorrigible behavior, which was later diagnosed as a myriad of mental illnesses including bipolar disorder, intermittent explosive personality disorder, and oppositional/defiant disorder, which affected the applicant’s mental behavioral health and led to the discharge. While the Board acknowledges the PTSD, Bipolar Disorder, and Depression, from the records and available evidence the Board could not determine whether or not any in-service medical condition outweighed the basis for separation, since the facts and circumstances surrounding the discharge are not known due to the absence of the separation file. (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 without knowing the applicant’s basis for separation there is insufficient information to support the applicant’s discharge was due to an isolated incident. Thus, the applicant’s discharge is proper and equitable. (3) The applicant contends youth and immaturity affected the applicant’s behavior at the time of the discharge. The Board considered this contention, but the Board Medical Advisor was unable to provide a medical opine on whether the applicant’s PTSD, Bipolar Disorder, and Depression actually mitigates the applicant’s discharge because the applicant’s official records do not contain the facts and circumstances surrounding the applicant’s discharge and the applicant did not provide any evidence of the basis of the applicant’s separation. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. 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 to because, despite applying liberal consideration, the applicant’s PTSD, Bipolar Disorder, and Depression do not outweigh the applicant’s discharge as the records relating to the facts and circumstances of applicant’s discharge are unavailable to determine the applicant’s behavioral health conditions are medically mitigating. 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 misconduct fell below that level of satisfactory service warranted for a General Discharge or meritorious service warranted for an upgrade to Honorable Discharge. (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 AR20210002577 1