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, the Veterans Center Mental Health suggested the reason(s) for discharge was due to PTSD. The applicant states in a Department of Veterans Affairs Statement in Support of Claim, around the fall of 2002, the constant bullying and constant harassment from First Sergeant (1SG) M. began. 1SG M. continued to bully and harass the applicant throughout the deployment in Iraq, while the applicant was dealing with missile attacks, shootings, and other situations. The applicant endured the behavior until April 2003. 1SG M. verbally and mentally tortured the applicant and also issued threats of physical harm. 1SG M. recruited his fellow peers as well as subordinates to join in the abuse. 1SG M. mentally tortured the applicant and also issued threats of physical harm. The bullying continued while the applicant was dealing with his grandfather's death. The applicant had no one to talk to and was forced to endure the harassment and it was overwhelming. The applicant received an American Red Cross message and went home on emergency leave. When the applicant returned to Iraq, the abuse hit an all-time high. The applicant was informed he retaliated but did not recall his reaction. All the applicant remembered was the military police attacking and treating him like an animal and not as a member of the Army. He was locked up and placed in a wooden and rebar box which was not large enough for him to stand and did not provide protection from deadly reptiles and spiders. He was kept there for three weeks, enduring the desert elements. A doctor visited the applicant, but offered no solution or insight to his mental state. After the visit, the applicant was court-martialed, which caused additional depression. The applicant became isolated, angry, paranoid and anxious. The applicant suffers from insomnia and cannot keep a job. The PTSD has made it difficult for the applicant in his personal life. The applicant turned to alcohol to ease the pain. The applicant desires assistance; his mental health and family are at stake. In a records review conducted on 18 January 2022, and by a 3 - 2 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: 8 December 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 3, dated 29 June 2004, on 7 July 2003, the applicant was found guilty of the following: Charge I, in violation of Article 128, UCMJ, for on or about 8 May 2003, unlawfully strike Sergeant First Class J. M. by hitting him in the face, head, chest, and shoulders with a closed fist and knee. Plea. Guilty Charge II, in violation of Article 91, UCMJ, for on 15 April 2003, willfully disobey a lawful order from SFC J.M., a noncommissioned officer, to take all the trash on top of the orange dumpsters and put it into trash bags. 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: 29 June 2004 / only so much of the sentence, as provides for reduction E-1, confinement for 60 days, and a bad conduct discharge was approved and, except for that part of the sentence extending to a bad conduct discharge, would be executed. The applicant was credited with 60 days of confinement towards the sentence to confinement. (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals granted relief based on the government conceding to the applicant's allegations of excessive delay in post-trial processing and affirmed the approved findings of guilty and only so much of the sentence as provides for a bad-conduct discharge; confinement for thirty days; and reduction to E-1. All rights, privileges, and property of which the applicant was deprived by virtue of that portion of the sentence was set aside by the decision and ordered restored. (5) Date Sentence of BCD Ordered Executed: 14 July 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 January 2000 / 4 years / The applicant was retained in Service 910 days for the convenience of the government. b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 88M10, Motor Transport Operator / 6 years, 5 months, 28 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait (15 April 2003 - 7 June 2003) f. Awards and Decorations: NDSM, GWOTEM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 3 as described in previous paragraph 3c. 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 7 June 2003' and, From "Confined by Military Authorities (CMA)" to "Present for Duty (PDY)," effective 7 November 2003. i. Lost Time / Mode of Return: 154 days: (CMA, 7 June 2003 - 7 November 2003) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided copies of VA Treatment Summary, dated 10 September 2014 and Progress Notes from 21 February 2014, to 12 June 2015, reflecting the applicant was diagnosed with: PTSD, Anxiety, Depression, and Adjustment Disorder. The applicant provided VA letter, dated 7 March 2014, reflecting the VA recommended the applicant to be seen at the Virginia Beach Veteran Readjustment and Counseling Center for individual therapy and group therapy. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; VA medical documents; VA Statement in Support of Claim; self-authored statement; three third party statements; Virginia Beach Vet Center letter; One Year Service Award. 6. POST SERVICE ACCOMPLISHMENTS: The applicant was awarded a 1 Year of Service award for reaching a significant career milestone. 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 waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-4 applies to a 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 he was harassed by his 1SG and other members of his unit. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The applicant contends he was diagnosed with PTSD by the VA. The applicant provided VA medical records reflecting he was diagnosed with: PTSD, Anxiety, Depression, and Adjustment Disorder. The AMHRR is void of a mental status evaluation. The applicant contends good service. The Board considered the service accomplishments and the quality of service. The applicant contends he had obtained employment. 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. 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. AHLTA contains no in-service BH diagnoses. JLV contains no post-service BH diagnoses. The applicant was being treated for PTSD at the Vet Center. (2) Did the condition exist or experience occur during military service? Yes. AHLTA contains no in-service BH diagnoses. JLV contains no post-service BH diagnoses. The applicant was being treated for PTSD at the Vet Center. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor determined after reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, that the applicant has a partially mitigating diagnosis of PTSD. While disobeying a direct order can be part of the sequela of PTSD, assault is not, and does not have a nexus with PTSD symptoms. Therefore, the applicant's failure to obey SFC J.M.'s order is mitigated but unlawfully striking SFC J. M. by hitting him in the face, head, chest, and shoulders with a closed fist and knee is not mitigated by applicant's PTSD as a basis for separation. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB concurred with the Board's Medical Advisor that applicant's PTSD did not outweigh the seriousness of the assault that was the unmitigated basis of separation. b. Response to Contention(s): (1) The applicant contends harassment by 1SG and other members of the unit. The Board considered this contention but determined the contended harassment did not overcome the unmitigated basis for separation. (2) The applicant contends diagnosis of PTSD by the VA. The Board accepted the VA's diagnosis of PTSD and used this contention during its deliberations. (3) The applicant contends good service. 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 unlawfully striking another Soldier, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends gainful employment. 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 may 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. 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 their 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 PTSD did not mitigate the offenses of unlawfully striking another 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 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 AR20210003282 1