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, applicant experienced many traumatic events during applicant's two deployments to Iraq. Applicant was in denial and did not know applicant had PTSD until applicant lost their temper and physically harmed a fellow Soldier while on a field training exercise in South Korea. Applicant was mandated to go through medical assessment whereby Army medical clinic diagnosed applicant with PTSD. Applicant was put on medication and weekly support group counseling with fellow Soldiers. The Army Sanity Board issued their statement confirming applicant's PTSD diagnosis and went further to state, the applicant's PTSD diagnosis represents a serious mental illness with significant occupational impairment." The report went on to emphasize the field training exercise which the incident took place represents an environment with substantial similarity to applicant's deployment and could have increased the probability of applicant's intrusive memories and physiologic reactivity when applicant is exposed to such environmental cues. The report says, this further impaired applicant's ability to suppress applicant's emotional response to stress thus significantly impacted the intensity of applicant's reaction to the situation which applicant might have managed differently. After getting out the Army, applicant used alcohol to calm applicant's anxiety and sleep for the first couple of years until it started to take a toll on applicant's health and applicant's wife, kids, family and friends. Applicant stopped alcohol consumption and has started seeing a private psychiatrist and who placed applicant back on medications. It has not been an easy road to recovery for the applicant and family but they have not given up. Applicant is always proud of applicant's service in the Army serving our great nation but applicant is most thankful for all the discipline and leadership skills applicant learned from this institution. Had applicant known applicant had PTSD prior to the incident, applicant might have taken steps to medicate and prevent the incident from happening. Applicant regrets it took place, but has learned from applicant's mistake and illness. Since then, applicant has not had any incident of such kind and has continued applicant's medication and counseling as applicant continues to path to full mental recovery. This would allow more meaningful veteran benefits including and most important medical treatment, but more importantly, it would help restore applicant's sense of pride for the years' applicant spent serving the nation as a proud member of the strongest military force in the world, The United States Army. In a records review conducted on 22 February 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: 3 February 2017 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 2, dated 16 April 2010, the applicant was found guilty of the following: Charge I, in violation of Article 93, UCMJ, for maltreatment of PVT L. M. H., a person subject to the applicant's orders, by striking PVT L. M. H. on the head and face with an M4 Rifle, causing a torn ear and cuts to the head, face, and cheek of PVT L. M. H. on or about 13 June 2009, at a training center in Korea. Charge II, in violation of Article 128, UCMJ, for committing assault upon PVT L. M. H. by striking the Soldier on the face and head with an M4 Rifle, and did thereby intentionally inflict grievous bodily harm upon the Soldier, to wit: lacerated ear, and cut cheek on or about 13 June 2009. (2) Adjudged Sentence: To be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 16 April 2010 / the sentence extending to a Bad Conduct Discharge, would not be executed until completion of the appellate review of the case. (4) Appellate Reviews: Special Court-Martial Order 95, dated 22 July 2011, the promulgated findings and sentence of Special Court-Martial Order No. 2, dated 16 April 2010, had finally been affirmed. Article 71(c) having been complied with, the Bad Conduct Discharge would be executed. (5) Date Sentence of BCD Ordered Executed: 22 July 2011 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 March 2004 / 3 years / There is no record of any reenlistment after this period, and no documentation as to why the applicant was retained in the Army after 22 July 2011. b. Age at Enlistment / Education / GT Score: 27 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 25L10, Cable Systems Installer/Maintainer / 16 years, 5 months, 13 days (includes 2,606 days of excess leave from 17 December 2009 to 3 February 2017, creditable for all purposes, except pay and allowances) d. Prior Service / Characterizations: RA, 21 August 2000 - 25 March 2004 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (4 August 2004 - 25 July 2005; and, between 2007 and 2008, the specific dates NIF) f. Awards and Decorations: ARCOM-2, AAM-4, MUC, AGCM-3, NDSM, GWOTSM, KDSM, ICM-CS, ASR, CAB g. Performance Ratings: October 2004 - September 2005 / Among the Best October 2005 - 30 June 2007/ Fully Capable 1 July 2007 - 30 June 2008 / Among the Best 1 July 2008 - 31 October 2008 / Among the Best h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 28 June 2004, for absenting them self from applicant's unit on or about 26 April 2004 and did remain absent until on or about 2 May 2004. The punishment consisted of a reduction to E-4, suspended, to be automatically remitted if not vacated before 25 December 2004; Oral reprimand. General Officer Memorandum Of Reprimand, dated 30 June 2006, reflects the applicant was driving while impaired. The applicant consented to an intoxilyzer test, which registered a .172 percent blood alcohol content. An additional intoxilyzer test registered a .181 percent blood alcohol content. Special Court-Martial Order Number 2, dated 16 April 2010, as described in paragraphs 3(1). Special Court-Martial Order Number 95, dated 22 July 2011, as described in paragraphs 3(4). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided pages from the RCM 706 Sanity board Evaluation, dated 29 September 2009, which reflect he was diagnosed with PTSD. Health Record, dated 15 and 21 December 2009, reflects a diagnosis of PTSD, Chronic, Alcohol Abuse, Adjustment Disorder with Depressed Mood, sleep disturbances, occupational problems. Ministry of Health, letter dated 4 January 2019, reflects the applicant has been seen regularly for about two years for PTSD acquired from battle field during applicant's military duties and have continued to manifest the following symptoms: self-isolation; withdrawn; intermittent insomnia; intolerance to almost anything; nervous or irritated when in a crowd; increased appetite; huge weight gain; frequent avoidance of situation and people; flash back and excessive dreams. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; Permanent Orders 092-163; Sanity board Evaluation memorandum; psychiatric Re-Assessment Report; health record. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states applicant has stopped alcohol consumption. 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 3-11 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 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 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 PTSD. The applicant provided health records which supports a diagnosis of PTSD, Chronic, Alcohol Abuse, Adjustment Disorder with Depressed Mood, sleep disturbances and occupational problems. The AMHRR does not contain a mental status evaluation. The applicant contends good service, including a combat tour. The applicant contends no longer consuming alcohol. 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 applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 DoD and VA medical records, and applicant's submissions, and found the applicant was diagnosed with PTSD and Major Depression, which, in the opinion of the Board's Medical Advisor could potentially mitigate assault and maltreatment of a subordinate Soldier which led to separation from the Army. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor arrived at this finding based upon an in-service BH diagnosis of PTSD and post-service BH diagnosis of Major Depression. The applicant is 60% service connected, 50% for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor arrived at this finding after reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, opined that applicant's PTSD does not mitigate applicant's Bad Conduct of assaulting PVT L. M. H., by striking the Soldier on the head and face with an M4 Rifle, causing a torn ear and cuts to the head, face, and cheek, as this behavior is not part of the sequela of symptoms associated with PTSD. (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, that the available evidence did not support a conclusion that any of the applicant's medical conditions outweighed the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends suffering from PTSD. The Board liberally considered this contention along with applicant submissions during proceedings, however the Board determined the applicant's PTSD diagnosis does not mitigate assault and maltreatment of a subordinate Soldier as this behavior is not part of the sequela of symptoms associated with PTSD. Further, this Board's conclusion is supported by evidence stating that applicant did not have a severe mental disease or defect at the time of the offense, and that applicant was able to appreciate the wrongfulness of the applicant's actions at the time of the offense. (2) The applicant contends good service, including a combat tour. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. Ultimately, the Board determined the applicant's discharge was appropriate because the quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the charges of assault and maltreatment of a subordinate Soldier, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) The applicant contends no longer consuming alcohol. The Board found the applicant's post-service accomplishments did not warrant a change to applicant's discharge. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. (4) The applicant contends an upgrade of the discharge would allow veterans benefits. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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) Board voted not to change the applicant's characterization of service because, despite liberally considering all the evidence before the Board, the applicant's PTSD and Major Depression did not excuse or mitigate, let alone outweigh the offenses of assault and maltreatment of a subordinate Soldier. 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. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, 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 AR20210003189 1