1. Applicant's Name: a. Application Date: 26 January 2021 b. Date Received: 1 February 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is bad conduct discharge. The applicant requests, through counsel, an upgrade to honorable or general (under honorable conditions) along with a narrative reason, reentry eligibility (RE) and separation program designator (SPD) code change. The applicant's counsel seeks relief contending, in effect, the applicant's discharge was inequitable because it was based on an isolated incident with no other adverse action in 24 months of honorable service. The applicant tried drugs to cope with the stress of deployment. The applicant's counsel contends the applicant's misconduct was relatively minor and the applicant was not offered rehabilitation. The applicant's counsel contends uniformity and unfair disparities in punishment mandates an upgrade for the applicant. The applicant has had significant post-service accomplishments. In a records review conducted on 11 March 2022, and by a 5-0 vote, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, the Board determined that clemency is warranted as an instance of leniency, to moderate the severity of the punishment imposed. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General, Under Honorable Conditions. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Court-Martial, Other / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 3 February 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 47, dated 28 December 2004, the applicant pled guilty and was found guilty of being absent without authority from on or about 17 May 2004, to on or about 29 May 2004; wrongfully possessing .191 grams of methamphetamine; and breaking restriction on or about 17 May 2004. (2) Adjudged Sentence: Confinement for 90 days and a Bad-Conduct Discharge. (3) Date/Sentence Approved: 9 July 2004, except for that portion of the sentence pertaining to a Bad-Conduct Discharge, will be executed. (4) Appellate Reviews: NIF (5) Date Sentence of BCD Ordered Executed: 30 June 2005 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 April 2002 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 92A10, Automated Logistical Specialist / 3 years, 8 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: See SCMO Number 47 as described in item 3c(1). i. Lost Time / Mode of Return: AWOL X 12 days (17 May 2004 - 29 May 2004 / Returned; Confinement X 34 days (9 July 2004 - 12 August 2004) / Released j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Applicant's Affirmation, Counsel's Brief with 11 exhibits (49 total pages) 6. POST SERVICE ACCOMPLISHMENTS: Counsel states the applicant successfully completed an outpatient substance abuse program and has been clean and sober since completing the program. The applicant has also been working towards completing a college degree and is highly involved with applicant's family business. In 2019, the applicant launched a business. 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 Service Member discharged from active military service within 15 years of the Service Member'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 IV 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 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 non-waivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a non-waivable 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 of active Federal service. Eligibility: Ineligible for enlistment. f. 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. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JJD" will be assigned an RE Code of "4." 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's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests, through counsel, an upgrade to honorable or general (under honorable conditions) along with a narrative reason, RE and SPD code change. 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's counsel requests the applicant's narrative reason for the discharge be changed. The applicant was separated under the provisions of Chapter 3, AR 635-200 with a Bad Conduct discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Court-Martial, Other," and the separation code is "JJD." Army Regulation 635- 8, Separation Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant's counsel requests the applicant's the separation code (SPD) be changed. Separation codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations the SPD code specified by Army Regulations for a discharge under Chapter 3, is "JJD." Army Regulation 635-8, Separation Documents, governs the preparation of the DD Form 214 and dictates the entry of the separation code entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other SPD code to be entered under this regulation. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JJD" will be assigned an RE Code of "4." The applicant's counsel contends the applicant's discharge was inequitable because it was based on an isolated incident with no other adverse action in 24 months of honorable service. The applicant's misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. The applicant's counsel contends the applicant tried drugs to cope with the stress of deployment. The applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct, which led to the separation action under review. The applicant's counsel contends the applicant's misconduct was relatively minor and the applicant was not offered rehabilitation. Army Regulation 635-200, paragraph 1-16d(2), details entitled counseling and rehabilitative requirements, and states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. The applicant's counsel contends the applicant has had significant post-service accomplishments. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may 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. The applicant's counsel contends uniformity and unfair disparities in punishment mandates an upgrade for the applicant. The method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 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, applicant submissions and third party statements, and found the applicant contended having PTSD, which, in the opinion of the Board's Medical Advisor, after applying liberal consideration, could potentially mitigate a discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that applicant, in a self-authored statement, contends suffering from PTSD while in military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor, even after applying liberal consideration, found the weight of the evidence did not support that applicant had any service-connected behavioral health condition, including PTSD, that mitigated the basis for applicant's discharge. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that applicant had any BH condition that outweighed the basis for applicant's separation. b. Response to Contention(s): (1) The applicant's counsel contends the applicant's discharge was inequitable because it was based on an isolated incident with no other adverse action in 24 months of honorable service. The Board considered this contention during proceedings, but found that applicant's misconduct, even if the AWOL, wrongful drug usage and breaking restriction are considered an isolated incident, adversely affected the quality of applicant's service, brought discredit on the Army, and was prejudicial to good order and discipline, and therefore supported applicant's discharge. (2) The applicant's counsel contends the applicant's misconduct was relatively minor and the applicant was not offered rehabilitation. The Board considered this contention during proceedings, but in accordance with AR 635-200, paragraph 1-16d(2), that details entitled counseling and rehabilitative requirements, the regulation states that the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier, and therefore the Board found this contention did not support any change to applicant's discharge. (3) The applicant's counsel contends the applicant tried drugs to cope with the stress of deployment. The Board liberally considered this contention, including applicant's assertion of PTSD, however the Board determined that the applicant had many legitimate avenues through which to obtain assistance or relief from the claimed stress, but the weight of the evidence does not support a conclusion that applicant sought such assistance, or was denied such assistance by command before committing the misconduct, which led to the separation action under review, nor that applicant's contended PTSD mitigated the basis for applicant's separation, and therefore the Board concluded this contention does not support any change to the applicant's discharge. (4) The applicant's counsel contends the applicant has had significant post-service accomplishments. The Board considered this contention during its deliberations that lead to a vote to upgrade the characterization of service due to clemency being granted as an instance of leniency, to moderate the severity of the punishment imposed . c. The Board determined that clemency is warranted as an instance of leniency, to moderate the severity of the punishment imposed. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General, Under Honorable Conditions. 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. Prior Decisions Cited: AR20190001603, AR20190000519, AR20190000077, AR20190000200, AR20190000506, AR20190000077, and AR20190000519. While the ADRB considers each applicant's case based on those applicable statutory and regulatory requirements with respect to the specific facts surrounding that applicant's discharge, applicant's cited cases may provide assistance to the Board during its deliberations. However, these seven referenced previous ADRB decisions do not provide any persuasive value for the Board because there are such significant variations between these cited cases and this applicant's case. First, the seven referenced cases (AR20190001603, AR20190000519, AR20190000077, AR20190000200, AR20190000506, AR20190000077, and AR20190000519) all had ADRB decisions that were based on an applicant's non-court martial sentence, and all seven of those applicant discharges were for a general discharge for a drug use basis for separation, whereas, this applicant has a discharge characterization of a bad conduct discharge (vice general discharge) issued by a special court martial for more than wrongful drug use, and therefore the Board found no value in considering these seven cited cases during its deliberations for this applicant's case. Further, this case's applicant had AWOL as an additional basis for applicant's separation that was not a basis of separation for any of the seven cited cases. Finally, of additional note, three of those seven cited cases (AR20190001603, AR20190000200, AR20190000506) had applicants with service-connected mitigating BH medical diagnosis, whereas, this applicant provided a self-assertion only of a BH condition. e. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because the Board granted clemency as an instance of leniency, to moderate the severity of the punishment imposed. 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 under the same pretexts, 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: General, Under 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 This is a significant "miss" by all in proofing this CRD. ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210005736 1