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: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, since being discharged in 2006 the applicant has grown in leaps and bounds and has paid the price for the poor choices and substance abuse during the time in the military. The applicant states that the applicant is now grounded by faith and has strong ties in the community to include a spouse and child. The applicant states that the selfish individual who once thought the actions affected no one now lives and thrives on the greater good of the family and community. During the time of enlistment, the applicant claims that the applicant was a young impressionable young man separated from the family, keeping bad company which influenced in negatively. The applicant states the applicant began using to cope with feelings of stress and anxiety and depression which worsened with continued substance abuse. The applicant states that the heavier the drinking and drug use became, the deeper the applicant’s life spiraled out of control. As the applicant experienced this, the applicant states that the applicant knew help was needed but the applicant carried so much shame about the behavior the applicant became afraid to ask for help. The applicant claims that the applicant’s lack of control and depression became such destructive downward spiral, the applicant contemplated suicide on several occasions. The applicant states that the applicant hit rock bottom when the applicant loss the military career and was incarcerated for seven months at Camp Lejeune, North Carolina. The applicant states that every day is a day the applicant consciously makes the choices to empower oneself and not go back to using. The applicant claims that the applicant knows this life is what the applicant and the family deserve and why the applicant has chosen to go this route by requesting the Board to review the discharge and help turn a negative situation into a positive life lesson for the applicant and the family. In a records review conducted on 9 June 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 / Under Other Than Honorable Conditions b. Date of Discharge: 31 August 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 5, dated 13 January 2005, on 30 June 2004, the applicant was found guilty of the following: Charge I, in violation of Article 86: Specification 1: On or about 8 April 2004, without authority was absent from unit and did remain so absent until on or about 12 April 2004. Plea: Guilty. Specification 2: On or about 17 April 2004, without authority was absent from unit and did remain so absent until on or about 20 April 2004. Plea: Guilty. Charge II, in violation of Article 112a: Specification 1: Wrongfully used cocaine, between on or about 16 March 2004 and on or about 23 March 2004. (After arraignment, but prior to entry of pleas, the Military Judge granted the government’s motion to amend the Specification by striking the words “a controlled substance”). Pleas: Guilty. Specification 2: Wrongfully used cocaine, between on or about 13 April 2004 and on or about 20 April 2004. (After arraignment, but prior to entry of pleas, the Military Judge granted the government’s motion to amend the Specification by striking the words “a controlled substance” and by deleting “e” in “diverse occasions” and making it “divers occasions”). Pleas: Guilty. Charge III, in violation of Article 121: Specification: Stole a DVD player and two sets of tools, of a total value of under $500, between on or about 20 March 2004 and on or about 22 March 2004, the property of Specialist P. W. Plea: Guilty. (2) Adjudged Sentence: To be discharged from the service with a Bad Conduct discharge and confined for nine months. (3) Date/Sentence Approved: 13 January 2005 / Only so much of the sentence as provides for a bad conduct discharge and confinement for six months is approved and, except for the part of the sentence extending to a bad conduct discharge, will be executed. The accused will be credited with 76 days of confinement against the sentence to confinement. A deferment of the automatic forfeiture of pay pursuant to Article 57(a) (2), UCMJ was approved on 16 July 2004 until the date of this action. (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: 12 May 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 May 2003 / 3 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 116 c. Highest Grade Achieved / MOS / Total Service: E-3 / 21B1P, Combat Engineer / 2 years, 10 months, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Confined by Military Authorities (CMA)” effective 21 April 2004; From “Confined by Military Authorities (CMA)” to “Present for Duty (PDY),” effective 19 September 2004. Special Court-Martial Order as described in previous paragraph 3c(1). Memorandum for Record, dated 21 July 2006, indicates there were missing documents which show the applicant was Present for Duty to AWOL effective 8 April 2004, AWOL to Present for duty effective 12 April 2004; and Present for Duty to AWOL effective 17 April 2004, AWOL to Present for Duty effective 20 April 2004. i. Lost Time / Mode of Return: 154 days: AWOL, 8 April 2004 – 11 April 2004 / NIF AWOL, 17 April 2004 – 19 April 2004 / NIF CMA, 21 April 2004 – 29 June 2004 / Released from Pretrial Confinement CMA, 30 June 2004 – 18 September 2004 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; four third-party letters; self- authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is now grounded by faith and has strong ties to the community to include a spouse and child. The selfish individual who once thought the actions affected no one now lives and thrives on greater good of the family and community. 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) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army’s best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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 youth and immaturity affected the applicant’s behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends drinking and abusing drugs to cope with stress, anxiety and depression. The applicant needed help but was to ashamed and embarrassed to ask. The applicant’s AMHRR contains no documentation of stress, anxiety or depression diagnosis. The applicant did not submit any evidence other than the applicant’s statement to support the contention the discharge resulted from any medical condition. The AMHRR does not contain a mental status evaluation (MSE). The applicant contends that the applicant is now grounded by faith and has strong ties to the community to include a spouse and child. The applicant states that the selfish individual who once thought the actions affected no one now lives and thrives on greater good of the family and community. 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. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct after leaving the Army. 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 asserts having anxiety and depression at the time of military service that could mitigate the basis of the applicant’s separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant self-asserted anxiety and depression existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined that the applicant’s self-asserted anxiety and depression does not mitigate the applicant’s basis of separation (AWOL, theft and drug abuse) because there is insufficient evidence to support the applicant’s assertion that anxiety and depression existed at the time of service, as there are no medical records available for review. (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 available evidence did not support a conclusion that the applicant’s self-asserted anxiety and depression outweighed the unmitigated basis for applicant’s separation – AWOL, theft and drug abuse. b. Response to Contention(s): (1) The applicant contends youth and immaturity affected the applicant’s behavior at the time of the discharge. Due to the seriousness of the misconduct including conscious, deliberate decisions the applicant made when presented with challenges, youthful indiscretion does not excuse the misconduct. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined the discharge is proper and equitable. (2) The applicant contends drinking and abusing drugs to cope with stress, anxiety and depression. The applicant needed help but was to ashamed and embarrassed to ask. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with stress, drug abuse and other misconduct behaviors. There is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant abusing drugs is not an acceptable response to dealing with the asserted depression, stress and anxiety, thus the applicant was properly and equitably discharged. Additionally, the Board considered the applicant’s assertion of depression, stress and anxiety, however the Board determined that there is insufficient evidence of said diagnoses in official or medical records, and the applicant did not provide supporting documentation by a qualified medical professional to provide merit to the claim. Ultimately, the Board determined that the applicant’s assertion alone did not outweigh the unmitigated basis of separation due to the severity of the offenses. (3) The applicant contends that the applicant is now grounded by faith and has strong ties to the community to include a spouse and child. The applicant states that the selfish individual who once thought the actions affected no one now lives and thrives on greater good of the family and community. The Board considered this contention and determined that, while the Board acknowledges the applicant’s post-service accomplishments, including the dedication to the applicant’s family, employer, and church and the applicant’s completion of residential substance use program, that these accomplishments do not outweigh the applicant’s unmitigated basis of separation due to the severity of the offenses. c. The Board determined the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted the applicant’s 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, despite applying liberal consideration, the applicant’s asserted depression, stress and anxiety did not outweigh the unmitigated offenses of AWOL, drug abuse and theft. The applicant did not supply sufficient independent corroborating evidence to support the applicant’s contentions, and 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 discharge is proper and equitable. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code and 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 AR20210002888 1