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 was deployed to Iraq and began having anxiety issues. The applicant sought anxiety medications which were not prescribed to applicant in order to self-medicate. The applicant was caught with illicit drugs while on duty and was then subjected to a court-martial. While the applicant was awaiting court-martial, applicant was seen by a mental health provider in Iraq. The applicant pled guilty at the court-martial for possession of controlled dangerous substances in a war zone. After the applicant was convicted, applicant was confined in Kuwait. The applicant was seen by another mental health provider and the provider diagnosed the applicant and prescribed a medication for post-traumatic stress disorder (PTSD). The applicant contends the Army failed applicant by not providing a referral to a medical board. The applicant served eight months in Iraq before the incident with the drug possession occurred. The applicant completed basic training, advanced individual training, and three months of training at Fort Hood, with no infractions. The applicant deployed to Iraq in 2004 in the military occupational specialty (MOS) 13B, Combat Engineer. Their mission was to make sure the main supply routes were clear for the roadside convoys. This MOS led to the applicant's PTSD diagnosis. The applicant should not have been given the BCD; applicant should have received a medical board for the Army to see a mental health condition is what led to applicant's self- medication. In a records review conducted on 31 January 2022, and by a 3-2 vote, the Board determined the discharge is inequitable based on the applicant's combat service and homelessness outweighing the unmitigated basis for separation. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 3. 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: 6 July 2007 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 12, dated 22 August 2005, on 26 March 2005, the applicant was found guilty of the following: Charge I, in violation of Article 92, UCMJ: Specification 1: On 17 December 2004, fail to obey a lawful general order by wrongfully consuming alcoholic beverages. Plea: Guilty. Specification 2: On 7 January 2005, fail to obey a lawful general order by wrongfully consuming alcoholic beverages. Plea: Guilty. Charge II, in violation of Article 112a, UCMJ: Specification 2: On 17 January 2005, wrongfully possess some amount of a Schedule IV controlled substance, with intent to deliver, to wit: valium while receiving special pay under 37 USC Section 310. Plea: Not Guilty, but Guilty of lesser-included offense of wrongful possession of valium. Finding: (in accordance with the applicant's plea). Specification 3: On or about 1 December 2004, wrongfully use some amount of a Schedule IV controlled substance, to wit: valium while receiving special pay under 37 USC Section 310. Plea: Guilty. Specification 4: On 1 December 2004, wrongfully use some amount of a controlled substance, to wit: marijuana in the form of hashish while receiving special pay under 37 USC Section 310. Plea: Guilty. Charge III, in violation of Article 121, UCMJ: The Specification: On 17 December 2004, steal property other than military property of a value more than $500, to wit: 5 compact discs, 10 DVDs, a Nikon camera, and a Panasonic stereo system, the property of the Army and Air Force Exchange [Service]. Plea: Guilty, except the word "more," substituting therefore the word "less." Of the excepted word: Not Guilty, of the substituted word: Guilty. Finding: (in accordance with the applicant's plea). (2) Adjudged Sentence: Reduction to E-1; to forfeit $750 pay per month for nine months; to be confined for nine months, and to be discharged from the service with a bad conduct discharge. (3) Date/Sentence Approved: 22 August 2005 / only so much of the sentence, as provides for reduction E-1, to forfeit $750 pay per month for four months; to be confined for four months, and to be discharged from the service with a bad conduct discharge was approved and, except for that 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. Court-Martial Order Number 30, dated 20 February 2007, reflects the sentence adjudged on 26 March 2005, as promulgated in Special Court-Martial Order Number 12 and as corrected by the U.S. Army Court of Criminal Appeals Notice of Court-Martial Order Correction, dated 11 May 2006 was finally affirmed. The applicant was credited with 25 days of confinement against the sentence to confinement. The portion of the sentence extending to confinement had been served. The bad conduct discharge was ordered executed. (5) Date Sentence of BCD Ordered Executed: 20 February 2007 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 May 2004 / Ordered to Active Duty in support of Operation Iraqi Freedom not to exceed 545 days (11 November 2005) / DD Form 214, item 12a, erroneously reflects 11 January 2004. The applicant was on excess leave for 713 days: 24 July 2005 to 6 July 2007. b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 117 c. Highest Grade Achieved / MOS / Total Service: E-4 / 21B10, Combat Engineer / 3 years, 9 months, 27 days d. Prior Service / Characterizations: ARNG, 26 June 2003 - 14 May 2004 / NA IADT, 11 January 2004 - 30 April 2004 / NA (Concurrent Service) e. Overseas Service / Combat Service: SWA / Iraq (NIF) f. Awards and Decorations: ASR, AFRMMD g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Department of Defense Report of Result of Trial, reflects the applicant was charged with: Violation of Article 92, UCMJ: Two Specifications of violating General Order Number 1. Plea: Guilty. Finding: Guilty. Violation of Article 112a, UCMJ: Specification 1: Wrongfully possess valium. Plea: Guilty. Finding: Dismissed before findings. Specification 2: Wrongfully possess valium with intent to deliver. Plea: Guilty to lesser included offense of wrongful possession of valium. Finding: (in accordance with plea). Specification 3: Wrongfully use valium. Plea: Guilty. Finding: Guilty. Specification 4: Wrongfully use marijuana/form of hashish. Plea: Guilty. Finding: Guilty. Violation of Article 121, UCMJ: The Specification: Larceny. Plea: Guilty by exceptions and substitutions. Finding: Guilty by exceptions and substitutions. Special Court-Martial Order 12, dated 22 August 2005 as described in previous paragraph 3c. Special Court-Martial 30, dated 20 February 2007, as described in previous paragraph 3c. i. Lost Time / Mode of Return: 76 days (CMA, 26 March 2005 - 9 June 2005) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Forms 149; DD Form 293; Literature: Iraq War, 2004- 05; Military Law Task Force, Military Psychiatric Policies and Discharges - An Introduction for Attorneys and Counselors. 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. (6) 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 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 special 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 being diagnosed with PTSD in Iraq and the condition caused applicant to self-medicate and ultimately led to applicant's discharge. The applicant's AMHRR contains no documentation of PTSD diagnosis. The applicant did not submit any evidence to support the contention the discharge resulted from any medical condition. The AMHRR is void of a mental status evaluation. The applicant contends being failed by the Army and applicant should have been referred to a medical evaluation board due to applicant's PTSD diagnosis. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service to include eight months on a combat tour. 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 found the applicant was diagnosed with PTSD that could mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that applicant was diagnosed with PTSD during applicant's military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor, a voting member, after applying liberal consideration, opined based on association between PTSD and substance use, there is a nexus between applicant's PTSD and the wrongful use of drugs and alcohol to self-medicate symptoms that mitigates those basis for separation. However, there is no association between applicant's PTSD and larceny since it does not impact one's ability to differentiate between right and wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. The Board concurred with the opinion of the Board's Medical Advisor, a voting member, that applicant's PTSD mitigates wrongful use of drugs and alcohol, but applicant's PTSD does not outweigh larceny that was the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends he was diagnosed with PTSD in Iraq and the condition caused him to self-medicate and ultimately led to his discharge. The Board determined that this contention was valid and voted to upgrade the characterization of service due to applicant's length of service to include combat and homelessness outweighing applicant's larceny that was the basis for applicant's separation. (2) The applicant contends the Army failed and he should have been referred to a medical evaluation board due to his PTSD. The Board considered this contention during its deliberation but determined the weight of evidence supported government regularity regarding applicant's discharge. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. (3) The applicant contends good service to include eight months on a combat tour. The Board considered this contention during its deliberation and determined applicant's length of service, including combat service, combined with applicant's homelessness outweighed the unmitigated basis of separation, and determined an upgrade to applicant's discharge was appropriate to address the inequity. c. The Board determined the discharge is inequitable based on the applicant's combat service and homelessness outweighing the unmitigated basis for separation. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because applicant's combat service and homelessness outweigh applicant's unmitigated basis of separation. (2) The Board voted to change the reason for discharge to Secretarial Authority under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFF. (3) The Board voted to change the RE code to RE-3 due to the applicant's acute combat-related PTSD. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / JFF d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, Chapter 15 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 AR20210003238 4