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: 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, suffering from Bipolar Disorder, Anxiety Disorder, and sleep deprivation during service. The applicant states being severely harassed by applicant's chain of command, and felt the need to flee for fear of the applicant's life. The applicant states this all affected the applicant's judgement and mitigates the applicant's conduct leading to the discharge. In a records review conducted on 30 June 2022, and by a 5-0 vote, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, the Board determined that clemency is warranted based on the partial medical mitigation for the applicant's marijuana use and completion of the confinement portion of the applicant's sentence. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to Under Other Than Honorable Conditions. 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: 16 May 2014 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 72, dated 10 April 2014, on 9 May 2013, the applicant was found guilty of the following: Charge I, in violation of Article 128: The applicant did on 16 August 2012, with intent to permanently remain away, remain absent from applicant's unit in desertion until the applicant was apprehended on 9 November 2012. Charge II, in violation of Article 86: Specification 1: The applicant on 16 March 2012, did go from applicant's appointed place of duty. Specification 2: The applicant on 13 November 2012, was absent from applicant's appointed place of duty, and remained absent until 19 November 2012. Charge III, in violation of Article 91: Dismissed. Charge IV, in violation of Article 112a: The applicant between 13 July 2012 and 16 August 2012, wrongfully used marijuana. Charge V, in violation of Article 134: The applicant broke restriction on 15 August 2012. (2) Adjudged Sentence: To be confined for six months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 10 April 2014 / only so much of the sentence as provided for confinement for four months and a Bad Conduct Discharge. The applicant was credited with 63 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: 16 May 2014 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 April 2011 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 21 years / HS Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-3 / 12B10, Combat Engineer / 2 years, 7 months, 17 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Personnel Action form, reflects the applicant's duty status changed from "Confined by Civil Authorities (CCA)" to "Present for Duty (PDY)," effective 15 February 2013 i. Lost Time / Mode of Return: 5 months, 23 days: AWOL, 16 August 2012 - 8 November 2012 / Apprehended by Civil Authorities AWOL, 13 November 2012 - 18 November 2012 / Apprehended by Civil Authorities Confined by Military Authorities, 19 November 2012 - 14 February 2013 / Apprehended by Civil Authorities j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 93; DD Form 149; DD Form 214; DD Form 553; DD Form 616; DA Form 4187; DA Form 4430; Special Court-Martial Order Number 72; Special Court-Martial Order Number 1; PCS Orders; Confinement Order; and Enlistment documents. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Paragraph 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing SJA. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial (other). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. 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. 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 suffering from Bipolar Disorder and Anxiety Disorder and sleep deprivation which affected the applicant's judgement, mitigating the applicant's conduct leading to discharge. The applicant's AMHRR contains no documentation of a behavioral health 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 is void of a Mental Status Evaluation. The applicant contends harassment and discrimination by members of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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. Applicant's Adjustment Disorder (AD),Insomnia, and asserted Bipolar Disorder and Anxiety can be potentially-mitigate the basis for the applicant's misconduct. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant's AD, Insomnia, and asserted Bipolar Disorder and Anxiety existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor opined that applicant's AD and Insomnia partially mitigate the applicant's basis for separation - wrongful drug use. While AD and Insomnia are not typically mitigating, there is direct evidence in the medical record that applicant's use of marijuana was an attempt to self-medicate the AD, specifically the applicant's Insomnia. However, the Board's Medical Advisor concluded that there are no natural sequelae and no evidence in the medical record supporting a nexus between the applicant's other BH conditions (Bipolar Disorder and Anxiety) and the applicant's other bases for separation - AWOLs with desertion requiring apprehension and breaking restriction. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, and determined that the applicant's AD and Insomnia does not outweigh the applicant's unmitigated misconduct - several AWOLs with desertion requiring apprehension and breaking restriction. b. Response to Contention(s): (1) The applicant contends suffering from Bipolar Disorder and Anxiety Disorder and sleep deprivation which affected the applicant's judgement, mitigating the applicant's conduct leading to discharge. The Board liberally considered this contention and determined that, while the applicant's AD, Insomnia partially mitigated the applicant's marijuana use, there is no natural sequelae and no evidence in the medical record supporting a nexus between the applicant's other BH conditions (Bipolar Disorder and Anxiety) and the applicant's other misconduct - AWOLs with desertion requiring apprehension and breaking restriction. Therefore, a discharge upgrade is not warranted as the applicant's asserted of Bipolar Disorder and Anxiety do not outweigh the unmitigated misconduct (several AWOLs with desertion requiring apprehension and breaking restriction). (2) The applicant contends harassment and discrimination by members of the chain of command. The Board considered this contention and found no evidence that the Command acted in an arbitrary or capricious manner. Therefore, the Board determined that the applicant's discharge was proper and equitable. c. The Board determined that clemency is warranted based on the partial medical mitigation for the applicant's marijuana use and completion of the applicant's confinement and fulfillment of his debt to society. The applicant may request a personal appearance hearing to address further 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 to change the applicant's characterization of service to Under Other Than Honorable Conditions because the applicant's Adjustment Disorder/Insomnia the applicant's marijuana use, However the Board determined that the applicant's several AWOLs with desertion requiring apprehension and breaking restriction were too severe to warrant further relief without mitigating circumstances for the Board's consideration. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, due to the severity of the remaining misconduct which was not medically mitigated. (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 AR20210002873 1