1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 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 was in a bad spot in applicant's life when applicant went absent without leave (AWOL). The applicant just transferred from Schofield Barracks to Fort Hood. The applicant was just promoted to Sergeant and was taking on many responsibilities due to an upcoming deployment to Afghanistan. The applicant had not been back six months from Iraq with applicant's unit of 325th Brigade Support Battalion and was looking at deploying for applicant's third tour. A short time after returning to applicant's unit in Texas, applicant was introduced to the wrong people. The applicant began to self-medicate with drugs and alcohol because it was the only coping mechanism applicant knew at the time. Applicant found them-self unable to stop on their own and ran to Alabama, then to Pennsylvania to get help with applicant's addiction. The applicant was attending the Methadone Clinic and just gave birth to applicant's only child in February 2011. The applicant was afraid to turn them-self in but a month after applicant's child was born applicant was picked up. The applicant believes applicant let them-self down and the Army down with bad choices. The applicant wanted to make a career out of the Army and to become a drill instructor. The applicant believes applicant is eligible for an upgrade due to applicant's first honorable term of three and a half years. The applicant was always one of the hardest working Soldiers who was excellent in physical training and was the officer in charge truck driver as an 88M. During the applicant's first tour in 2006 to 2007, applicant was stationed in Kirkuk, Iraq for 15 months. The applicant completed approximately 118 convoy missions; assisted in rescuing two pilots who had their helicopter go down; and encountered multiple improvised explosive devices (IEDs) and mortars. The applicant received a Combat Action Badge along with various ribbons. During the applicant's second deployment, applicant was a radio operator for all the units in applicant's battalion; won Company and Battalion Soldier of the Month; and succeeded at the Noncommissioned Officer Board. In 2009, the applicant was promoted to Sergeant and it was one of the proudest days of applicant's life. The applicant believes applicant had many accomplishments during applicant's military career and regrets the bad choices applicant made for the future. The applicant struggles every day with PTSD, hearing loud voices, loud sounds, having panic attacks, and severe night terrors. The applicant has to take medication to subdue them. The applicant asks the board to consider applicant's record and upgrade applicant's discharge. The applicant indicated needing additional time, after the 29 July 2019 suspense date, provided by the Army Review Boards Agency, to obtain medical documents to support applicant's PTSD diagnosis because applicant was incarcerated. In a records review conducted on 31 January 2022, and by a 3-2 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 characterization of BCD is too harsh. 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: Special Court-Martial, Other / AR 635- 200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 8 August 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 20, dated 3 August 2012, on 14 June 2011, the applicant was found guilty of the following: Charge I, in violation of Article 86, UCMJ: Specification 1: From 3 March 2010 to 6 April 2010, without authority, absent themselves from applicant's unit. Plea: Guilty. Specification 2: From 13 April 2010 to 13 March 2011, without authority, absent themselves from applicant's unit. Plea: Guilty. Charge II, in violation of Article 90, UCMJ: The Specification: On 7 April 2011, willfully disobey a lawful command from Captain E.V., a superior commissioned officer, to reside in the barracks, remain on post, and sign in with the Staff Duty Desk. Plea: Guilty. Charge III, in violation of Article 121, UCMJ: The Specification: On 20 June 2010, steal a Samsung High Definition Camcorder, of a value of less than $500, the property of the Army and Air Force Exchange Service. Plea: Guilty. The Additional Charge, in violation of Article 112a, UCMJ: The Specification: Between 4 April 2011 and 11 April 2011, wrongfully use cocaine. Plea: Guilty. (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: 3 April 2012 / the sentence was approved and, except for that part of the sentence extending to a bad conduct discharge, would be executed. The portion of the sentence extending to confinement had already been served. The applicant was credited with 69 days of confinement towards the sentence to confinement. The automatic forfeitures were waived effective 28 June 2011, and the waiver terminated on 5 September 2011, the date the applicant was released from 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 Opinion is not in the Board's file. (5) Date Sentence of BCD Ordered Executed: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 April 2009 / 5 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-5 / 88M10, Motor Transport Operator / 7 years, 9 months, 20 days d. Prior Service / Characterizations: RA, 17 May 2005 - 22 April 2009 / HD e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (31 July 2006 - 5 October 2007) / The applicant's AMHRR reflects the applicant received temporary change of stations orders for Iraq with a proceed date of 5 October 2008 (anticipated length 365 days) and was awarded the ARCOM for service in Iraq from 15 October 2008 to 15 October 2009; however, this service is not reflected on the DD Form 214. f. Awards and Decorations: ARCOM-2, AAM, MUC, NDSM, GWOTSM, ICM-CS, ASR, OSR-2, CAB / The applicant's AMHRR reflects award of two AAMs and three OSRs; however, the awards are not reflected on the DD Form 214, item 18. g. Performance Ratings: None 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 "Absent Without Leave (AWOL)," effective date 13 April 2010; and, From "Absent Without Leave (AWOL)," to "Dropped From Rolls (DFR)," effective 15 April 2010. Report of Return of Absentee, dated 13 March 2011, reflects the applicant was apprehended by civil authorities and returned to military control. Special Court-Martial Order Number 20, dated 3 August 2012, described in previous paragraph 3c. i. Lost Time / Mode of Return: 1 year, 5 months, 3 days: AWOL, 3 March 2010 - 5 April 2010 / NIF AWOL, 13 April 2010 - 12 March 2011 / Apprehended by Civil Authorities CMA, 6 April 2011 - 4 September 2011 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; two self-authored statements. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-4 applies to a 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 which led to applicant's actions to self-medicate and ultimately led to applicant's discharge. The applicant's AMHRR contains no documentation of PTSD diagnosis. The Board liberally considered applicant's contention but concluded applicant's contention insufficient evidence to overcome the presumption of government regularity and conclude that the discharge resulted from any medical condition. The applicant's AMHRR is void of a mental status evaluation. The ARBA sent a letter to the applicant at the address in the application on 28 June 2019, requesting documentation to support a PTSD diagnosis, with a suspense date of 27 July 2019. The applicant requested additional time to submit documentation but ARBA received no documentation. The applicant contends good service to include two combat tours. 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 medical records that applicant had a BH condition of Major Depressive Disorder, and that applicant asserts suffering from PTSD that could also mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found evidence to support that the applicant's Major Depressive Disorder and PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor, after applying liberal consideration, opined that applicant's Major Depressive Disorder and PTSD did not actually mitigate applicant's AWOL, larceny, disobeying a lawful order and cocaine usage for which the Special Court-Martial found applicant guilty. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the evidence did not support a conclusion that applicant's medical conditions outweighed the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends suffering from PTSD which led to applicant's actions to self- medicate and ultimately led to applicant's discharge. The Board liberally considered this contention, however the Board determined that the evidence did not support a conclusion that applicant's BH conditions outweighed the multiple basis for applicant's guilty verdict by the Special Court-Martial. (2) The applicant contends good service to include two combat tours. The Board considered this contention during its deliberation and voted to grant clemency to upgrade applicant's characterization because the current characterization is too harsh. c. The majority of the Board determined after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, that clemency is warranted based on the determination that applicant's BCD characterization is too harsh. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to, Under Other Than Honorable Conditions. 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 contentions that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Other Than Honorable Conditions because clemency is warranted based on the characterization of BCD is too harsh for the offenses of AWOL, larceny, wrongfully use of cocaine, and disobeying a lawful command. (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: 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 AR20210003237 1