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, during deployment to Iraq, the truck the applicant was driving was hit by a road side bomb. The applicant now suffers from PTSD, TBI, severe complex sleep apnea, with hypoxemia, depressive disorder, anxiety disorder, and hearing loss in right ear tinnitus from a blast on the right side and has recently started receiving disability. After deployment when the applicant returned back to the states, the applicant's daughter's mother had lost custody and the state had the applicant's daughter. The applicant was called and told the applicant needed to get the daughter before she fell victim of the state. The applicant told his Sergeant and was told "Family First". His Sergeant would cover. The applicant dropped everything and went to get the daughter and bring her back. The applicant was gone for several days with travel and did not realize marked as was AWOL. When the applicant returned to formation, the applicant was arrested in front of the entire unit and taken to military prison for seven months. When the applicant was released, the applicant was given full custody of the daughter. Prior to this, the applicant was never in trouble. The applicant was a proud Soldier who loved the job and the Army. The applicant is trying to better the applicant's life, but the discharge is holding the applicant back from programs and help needed. An upgrade will allow the applicant to receive the professional help from brothers and sisters who truly understand what the applicant has been through and the long struggles ahead. In a records review conducted on 4 January 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: 22 July 2009 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 59, dated 8 November 2007, the applicant was found guilty of the following: Charge I, in violation of Article 85, Plea: Not Guilty, but Guilty of violation of Article 86. Finding: Not Guilty, but Guilty of a violation of Article 86. Specification 1: Did, on or about 2 May 2006, without authority and with intent to remain away therefrom permanently, absent themselves from assigned unit, located at Fort Stewart, Georgia, and did remain so absent in desertion until on or about 14 November 2006. Plea: Not Guilty, but Guilty of Absent Without Leave in violation of Article 86. Finding: Guilty, except the words "and with intent to remain away therefrom permanently" and the words, "in desertion." Of the excepted words: Not Guilty. Specification 2: Did, on or about 19 December 2006, without authority and with intent to remain away therefrom permanently, absent themselves from assigned unit, located at Fort Stewart, Georgia, and did remain so absent in desertion until on or about 21 February 2007. Plea: Not Guilty, but Guilty of Absent Without Leave in violation of Article 86 (Specification amended by the Military Judge prior to findings by excepting out the words "and with intent to remain away therefrom permanently" and the words "in desertion." The plea remained the same). Finding: Guilty to the specification as amended. Charge II. Article 86. Plea: Not Guilty. Finding: Guilty. Specification 1: Did, on or about 6 December 2006, without authority, absent themselves from assigned unit, located at Fort Stewart, Georgia, and did remain so absent until on or about 11 December 2006. Plea: Not Guilty. Finding: Guilty, except the words and figures "11 December," substituting therefor the words and figures "8 December." Of the excepted words and figures: Not Guilty; of the substituted words and figures: Guilty. Specification 2: Did, at Fort Stewart, Georgia, on or about 28 November 2006, without authority, fail to go at the time prescribed to appointed place of duty. Plea: Not Guilty. Finding: Not Guilty, upon motion of Defense Counsel. (2) Adjudged Sentence: Reduction to E-1; to be confined for seven months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 8 November 2007 / only so much of the sentence, a reduction E-1, confinement for six months, 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 7 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 affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 7 May 2009 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 April 2005 / 3 years 17 weeks b. Age at Enlistment / Education / GT Score: 22 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 88M10, Motor Transport Operator / 3 years, 10 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (17 November 2005 - 13 April 2006) f. Awards and Decorations: NDSM / The applicant provided evidence of award of the AAM and the CAB, however, these awards are not reflected on the DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet, dated 27 February 2007, reflects the applicant was charged as described in the previous paragraph 3c. Special Court-Martial Order 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 6 April 2007; and, From "CMA" to "PDY," effective 24 August 2007. Special Court-Martial Order Number 70, dated 7 May 2009, reflects the sentence to confinement had been served and the Bad Conduct discharge would be executed. i. Lost Time / Mode of Return: 139 days (CMA, 6 April 2007 - 23 August 2007) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; Combat Action Badge Certificate; Permanent Orders 052-06; Orders 320-386; Certificate of Wartime Service; Certificate of Membership; Army Achievement Certificate; DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he recently started and manages a food pantry. 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 waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The service record indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends suffering from PTSD. 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 (MSE). ARBA sent a letter to the applicant at the address in the application on 27 September 2019, requesting documentation to support a PTSD diagnosis but received no response from the applicant. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends starting and managing a food pantry in local town. 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 reviewed the applicant's DOD and VA health records and found the applicant contends suffering from PTSD while in service in a self- authored statement. (2) Did the condition exist or experience occur during military service? Yes. The applicant asserts suffering from PTSD in a self-authored statement. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Board's Medical Advisor that the weight of the evidence does not support applicant's contention that his PTSD, TBI, severe complex sleep apnea, with hypoxemia, depressive disorder, and anxiety disorder actually mitigate applicant's seven months of AWOL that was the basis of applicant's separation. Specifically, the Medical Advisor opined that applicant did not have any sequelae of any medical condition that was the catalyst for applicant's AWOL, nor supported the extended period of time applicant was AWOL. (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 none of the applicant's BH conditions outweighed the applicant's basis for separation. b. Response to Contentions: (1) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board determined that the Army has many legitimate avenues available to service members requesting assistance with disputes. There is no evidence in the official records nor provided by the applicant that such assistance was pursued. (2) The applicant contends suffering from PTSD. The applicant's DOD and VA health records do not contain documentation of a PTSD diagnosis. The Board liberally considered applicant's contention but determined the weight of evidence did not support the contention the discharge resulted from any medical condition. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation.. (3) The applicant contends good service, including a combat tour. The Board considered the applicant's service accomplishments. The record confirms 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. (4) The applicant contends starting and managing a food pantry in a local town. 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. (5) The applicant contends an upgrade of the discharge would allow veterans benefits. 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 contentions 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 BH conditions, including PTSD did not mitigate the AWOL offenses. The Board determined that 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 AR20210003308 1