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 discharge. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, he suffered a traumatic brain injury (TBI) while in Iraq in 2006. The applicant had a magnetic resonance imaging (MRI) with continuing signs of memory loss and irritability and they have become worse over time. In a records review conducted on 16 December 2021, and by a 5 - 0 vote, the Board determined that the characterization of service was an injustice as compared to other cases when considering the applicant's length and quality of service, to include combat service, and prior period of Honorable service. Accordingly, the Board voted to grant clemency relief in the form of an upgrade to the characterization of service to Under Other Than Honorable Conditions. The Board determined the narrative reason, SPD code, and RE code were proper and equitable and voted not to change them. 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: 4 March 2011 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order (SPCMO) Number 1, dated 17 May 2010, on 19 February 2010, the applicant was found guilty of the following: Charge I, in violation of Article 90, UCMJ: Specification 1: Willfully disobeying a lawful command from CPT N.S., his superior commissioned officer, to not contact or communicate with any initial entry training (IET) Soldiers, either directly or through a third party, unless for official business (on divers occasions between 14 February and 30 June 2009). The applicant plead guilty. Specification 2: Willfully disobeying a lawful command from Captain J.B., his superior commissioned officer, to not contact Private E.G. or trainees of any kind at 143rd Ordinance Battalion (31 July 2009). The applicant plead guilty. Charge II, in violation of Article 92, UCMJ: Specification 1: Violating a lawful general regulation by wrongfully having a relationship not required by the training mission with PVT E.G., an IET trainee, by engaging in consensual sexual intercourse and performing cunnilingus on her at his on-post residence, dancing, with and kissing her, having personal conversations with her on his cellular telephone, sending emails and sending her personal text messages from his cellular telephone (between 25 December 2008 and 30 June 2009). The applicant plead guilty. Specifications 2: Violating a lawful general regulation by wrongfully having a relationship not required by the training mission with PFC D.W., an IET trainee, by asking her to go to a party, sending her a shirtless photograph of himself to her cellular telephone, sending her personal text messages, soliciting her to go out for drinks, asking her to send him nude photographs of herself, and by sending nude photographs of herself to his cellular telephone (between 1 December 2008 and 31 January 2009). The applicant plead not guilty. Specification 3: Violating a lawful general regulation by wrongfully having a relationship not required by the training mission with PFC C.R., an IET trainee, by having personal conversations with her via cellular telephone, soliciting her for sex, sending her text messages of a sexual nature, and driving her in his privately owned vehicle (POV) (between 1 September and 18 November 2008). The applicant plead not guilty. Specification 4: Violating a lawful general regulation by fraternizing and wrongfully having a prohibited relationship with C.R., by soliciting her for sex, sending text messages asking her to go to a hotel, sending text messages of a sexual nature, and driving her in his (POV) (between 19 November and 31 December 2008). The applicant plead not guilty. Specification 5: Violating a lawful general regulation by wrongfully having a relationship not required by the training mission with Private K.F., an IET trainee, by transporting her in his POV to his on-post residence and having her as a visitor (between 1 January and 11 January 2009). The applicant plead guilty. Specification 6: Violating a lawful general regulation by fraternizing and wrongfully having a prohibited relationship with PVT M.K., by transporting him in his POV and socializing with him (between 1 December and 18 December 2008). The applicant plead not guilty. For finding purposes, the military judge merged specifications 6 and 7 as an unreasonable multiplication of charges. Specification 7: Violating a lawful general regulation by fraternizing and wrongfully having a prohibited relationship with PVT C.H., by transporting him in his POV and socializing with him (between 1 December and 18 December 2008). The applicant plead not guilty. (See Charge II, Specification 6.) Charge III, in violation of Article 107, UCMJ, The Specification: With intent to deceive, making to Special Agent E.R. false official statements when asked questions in regards to the applicant's relationship with Private C.R. (10 February 2009). The applicant plead not guilty. Additional Charge, in violation of Article 90, UCMJ, Specifications 1 - 4, for willfully disobeying CPT J.B., his superior commissioned officer, to not contact PVT E.G. (27 September 2009; 29 September 2009; 8 October 2009; and, 23 October 2009). The applicant plead guilty. For finding purposes, the military judge merged specifications 1 through 4 as an unreasonable multiplication of charges. (2) Adjudged Sentence: Reduction to E-1; to be confined for five months; and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 17 May 2010 / The sentence was approved and, except for that part of the sentence extending to a bad conduct discharge, ordered executed. The automatic forfeiture of two-thirds pay per month was deferred, effective 5 March 2010, ends this date. The automatic forfeiture of $964 pay per month required by Article 58b, UCMJ, was waived for six months, with direction such monies be paid to the guardians of the applicant's minor children. (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: 24 November 2010 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 October 2008 / 6 years b. Age at Enlistment / Education / GT Score: 31/ HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 91H10, Tracked Vehicle Repairer / 11 years, 10 months, 1 day d. Prior Service / Characterizations: RA, 8 January 1999 - 16 November 2003 / HD RA, 17 November 2003 - 5 March 2006 / HD RA, 6 March 2006 - 7 October 2008 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (27 April 2003 - 5 March 2004; 5 March 2005 - 14 February 2006) f. Awards and Decorations: ARCOM-2, AAM-4, AGCM-3, NDSM, GWOTEM, GWOTSM, KDSM, ICM-2CS, NCOPDR, ASR, OSR-4 / The applicant's AMHRR reflects award of the CAB, however, the award is not reflected on the DD Form 214. g. Performance Ratings: 1 June 2008 - 23 January 2009 / Among the Best 24 January 2009 - 23 January 2010 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Special Court Martial Order Number 1, dated 17 May 2010, as described in previous paragraph 3c. U.S. Army Court of Criminal Appeals, Notice of Court-Martial Correction, dated 22 July 2010, shows ACCA made a correction to SPCMO Number 1, Charge II, Specification 1, after the word "Finding:" the sentence "Dismissed by the military judge on motion of the trial counsel." and substituting the word "Guilty." and adding to Charge III, The Specification, after the words "have you been involved" the words "with any fraternization or have been involved." Special Court Martial Order Number 163, dated 24 November 2010, reflects the applicant's findings and sentence was affirmed by the U.S. Army Court of Criminal Appeals and the bad conduct discharge was ordered executed. i. Lost Time / Mode of Return: 115 days: (CMA, 19 February - 14 June 2010 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided VA rating decision, which reflects the applicant was diagnosed with tinnitus due to a qualifying event, injury, or disease. His military occupational specialty was consistent with acoustic trauma during service. The applicant was diagnosed with sleep apnea, but the VA could not establish it was service connected. The VA determined, the applicant did not meet the criteria for the diagnosis of TBI. The evidence shows favorable findings a qualifying event, injury, or disease had its onset during his service; the applicant reported a head injury; he reported a head injury associated with a motor vehicle accident; and, he had an MRI based on his report of a TBI, memory, and irritability symptoms becoming worse. The applicant provided in service medical records, dated 23 August 2019, which reflect diagnoses post-traumatic stress disorder; anxiety disorder, not otherwise specified; occupational problem; adjustment disorder with anxiety and depressed mood; and, major depressive disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; VA disability rating decision; in-service medical records. 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. (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) Section III establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed. Because relevant and material facts stated in a court-martial specification are presumed by the ADRB to be established facts, issues relating to the applicant's innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the ADRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment 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. DISCUSSION 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 suffered TBI from his service in Iraq and had an MRI which shows continuing signs of memory loss and irritability. The applicant provided a VA disability rating decision which shows the applicant did not meet the criteria for the diagnosis of TBI, but shows the applicant reported a head injury; a head injury associated with a motor vehicle accident; and, he had an MRI based on his report of a TBI, memory, and irritability symptoms becoming worse. The applicant provided in-service medical records which show he was diagnosed with PTSD; anxiety disorder, not otherwise specified; occupational problem; adjustment disorder with anxiety and depressed mood; and major depressive disorder. 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 and determined the applicant had an in-service diagnoses of Adjustment Disorder, Anxiety Disorder, Depression, and PTSD that may mitigate the basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant had Adjustment Disorder, Anxiety Disorder, Depression, and PTSD during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor opined that the applicant's basis of separation is not a sequelae of applicant's diagnosed BH conditions and therefore could not mitigate applicant's misconduct that violated the UCMJ. (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 applicant's non-medically mitigated offenses of wrongfully having multiple relationships with IET Soldiers, false official statements, disobeying superior commissioned officer, and disobeying a lawful command outweighed the applicant's BH diagnosis of Adjustment Disorder, Anxiety Disorder, Depression, and PTSD for the reasons listed in (3) above. b. The applicant contends he suffered TBI from his service in Iraq. The Board, during its deliberations reviewed the applicant's DOD and VA health records and determined the applicant had an in-service diagnoses of Adjustment Disorder, Anxiety Disorder, Depression, and PTSD from the applicant's trauma. While the applicant asserts TBI, the Board also considered evidence that applicant did not have a TBI. c. The Board determined that the characterization of service was an injustice as compared to other cases when considering the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (OBHI and PTSD diagnoses), and prior period of Honorable service. 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 in favor of clemency to change the applicant's characterization of service to Under Other Than Honorable Conditions to align with other cases when considering the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (OBHI and PTSD diagnoses), and prior period of Honorable service. Thus the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, as 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: 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 AR20210003315 8